UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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KLAYMAN et aI.,
Plaintiffs,
v.
OBAMA et aI.,
Defendants.
Civil Action No. 13-0851 (RJL)
FILED
DEC 16 2013
KLAYMAN et aI.,
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Plaintiff,
v.
OBAMA et aI.,
Defendants.
Clerk, U.S. District &Bankruptcy
Courts forthe District of Columbia
~MORANDUM OPINION
December 162013 [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]
On June 6,2013, plaintiffs brought the first of two related lawsuits challenging the
constitutionality and statutory authorization of certain intelligence-gathering practices by
the United States government relating to the wholesale collection of the phone record
metadata of all U.S. citizens.' These related cases are two of several Iawsuits arising
\ Plaintiffs' second suit was filed less than a week later on June 12,2013, and challenged the
constitutionality and statutory authorization of the government's collection of both phone and
internet metadata records.
The complaint in ACLU v. Clapper, Civ. No. 13-3994, which was filed in the United States
District Court for the Southern District of New York on June 11, 2013, alleges claims similar to
2
1
from public revelations over the past six months that the federal government, through the
National Security Agency ("NSA"), and with the participation of certain
telecommunications and internet companies, has conducted surveillance and intelligencegathering programs that collect certain data about the telephone and internet activity of
American citizens within the United States. Plaintiffs-five individuals in total between
No. 13-851 ("Klayman f') and No. 13-881 ("Klayman IF')-bring these suits as U.S.
citizens who are subscribers or users of certain telecommunications and internet firms.
See Second Am. Compl. (Klayman I) [Dkt. # 37] ~ 1; Am. Compl. (Klayman II) [Dkt. #
30] ~ 1.3 They bring suit against both federal government defendants (several federal
agencies and individual executive officials) and private defendants (telecommunications
and internet firms and their executive officers), alleging statutory and constitutional
violations. See generally Second Am. Compl. (Klayman I); Am. Compl, (Klayman II).
Before the Court are plaintiffs' two Motions for Preliminary Injunction [Dkt. # 13
(Klayman I), # 10 (Klayman II)], one in each case. As relief, plaintiffs seek an injunction
"that, during the pendency of this suit, (i) bars [d]efendants from collecting [p]laintiffs,
those in the instant two cases. See also In re Electronic Privacy Information Center, No. 13-58
(S. Ct.) (Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari filed July 8,
2013; petition denied Nov. 18,2013); Smith v. Obama, Civ. No. 2:13-00257 (D. Idaho)
(complaint filed June 12,2013); First Unitarian Church ofLos Angeles v. NSA, Civ. No. 133287 (N.D. Cal.) (complaint filed July 16,2013).
Plaintiffs' complaints reflect their intention to bring both suits as class actions on behalf of
themselves and "all other similarly situated consumers, users, and U.S. citizens who are
customers and users of," Second Am. Compl. ("Klayman f') ,-r 1, or "who are subscribers, users,
customers, and otherwise avail themselves to," Am. Compl. ("Klayman If') ,-r 1, the
telecommunications and internet companies named in the complaints. Plaintiffs have not yet,
however, moved to certify a class in either case and in fact have moved for extensions of time to
file a motion for class certification four times in each case. See Motion for Extension of Time to
Certify Class Action (Klayman I) [Dkt. ## 7, 14,27,40]; (Klayman II) [Dkt. ## 6, 11,23,33].
3
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call records under the mass call surveillance program; (ii) requires [d]efendants to destroy
all of [p]laintiffs' call records already collected under the program; and (iii) prohibits
[d]efendants from querying metadata obtained through the program using any phone
number or other identifier associated with [p]laintiffs ... and such other relief as may be
found just and proper." Pis.' Mot. for Prelim. Inj. (Klayman I) [Dkt. # 13]; Pis.' Mot. for
Prelim. Inj. (Klayman II) [Dkt. # 10]; see also PIs.' Mem. P. & A. in Supp. of Mot. for
Prelim. Inj. (Klayman I) ("PIs.' Mem.") [Dkt. # 13-1], at 30-31. 4 In light of how
plaintiffs have crafted their requested relief, the Court construes the motions as
requesting a preliminary injunction (1) only as against the federal government
defendants, and (2) only with regard to the government's bulk collection and querying of
phone record metadata. Further, between the two cases, plaintiffs have alleged with
sufficient particularity that only two of the five named plaintiffs, Larry Klayman and
Charles Strange, are telephone service subscribers." Accordingly, for purposes of
Unless otherwise indicated, all citations to "Pis.' Mem." and other docket items hereinafter
shall refer to the filings made in Klayman I.
4
5 In Klayman I, plaintiffs Larry Klayman and Charles Strange have submitted affidavits stating
they are subscribers of Verizon Wireless for cellular phone service, see Aff. of Larry Klayman
("Klayman Aff.") [Dkt. # 13-2], at ~ 3; SuppI. Aff. of Larry Klayman ("Klayman SuppI. Aff.")
[Dkt. # 31-2], at ~ 3; Aff. of Charles Strange ("Strange Aff.") [Dkt. # 13-3], at ~ 2, but neither the
complaint nor the motion affirmatively alleges that Mary Ann Strange is a subscriber of Verizon
Wireless or any other phone service, see Second Am. Compl. ~ 10 (describing plaintiff Mary
Ann Strange). And in Klayman II, where the complaint and motion raise claims regarding the
government's collection and analysis of both phone and internet records, the plaintiffs neither
specifically allege, nor submit any affidavits stating, that any of them individually is a subscriber
of either of the two named telephone company defendants, AT&T and Sprint,jor telephone
services. See Aff. of Larry Klayman (Klayman II) [Dkt. # 10-2], at ~ 3 ("I am also a user of
internet services by ... AT&T ...."); SuppI. Aff. of Larry Klayman (Klayman II) [Dkt. # 26-2],
at ~ 3 (same); Aff. of Charles Strange (Klayman II) [Dkt. # 10-3], at ~ 3 ("I am also a user of
internet services by ... AT&T ...."); Am. Compl. ~ 14 ("Plaintiff Garrison ... is a consumer
and user of Facebook, Google, YouTube, and Microsoft products."). Compare Am. CompI.
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resolving these two motions, the Court's discussion of relevant facts, statutory
background, and legal issues will be circumscribed to those defendants (hereinafter "the
Government"), those two plaintiffs (hereinafter "plaintiffs"), and those claims."
(Klayman II) ~ 13 ("Plaintiff Ferrari ... is a subscriber, consumer, and user of Sprint,
Google/Gmail, Yahoo!, and Apple. As a prominent private investigator, Ferrari regularly
communicates, both telephonically and electronically ...." (emphasis added)), with Pis.' Mem.
(Klayman II) [Dkt. # 10-1], at 18 ("Defendants have indisputably also provided the NSA with
intrusive and warrantless access to the internet records of Plaintiffs Michael Ferrari and Matthew
Garrison" (emphasis added)).
Klayman I concerns only the collection and analysis of phone record data, and only with
respect to private defendant Verizon Communications. Klayman II, by contrast, appears to
concern the collection and analysis of both phone and internet record data, and includes both
phone companies and internet companies as private defendants. In the latter case, Plaintiffs'
Motion for Preliminary Injunction [Dkt. # 10] and their Memorandum of Points and Authorities
in Support [Dkt. # 10-1] suffer from some confusion as a result of its larger scope. On the face
of the Motion itself [Dkt. # 10] and their Proposed Order [Dkt. # 10-4], plaintiffs request relief
that is identical to that requested in the motion in Klayman I-Le., relief concerning only the
collection and querying of phone record data. Throughout the memorandum in support [Dkt. #
10-1], however, plaintiffs intermingle claims regarding the surveillance of phone and internet
data, and then in conclusion request relief arguably concerning only internet data. See Pis.'
Mem. P. & A. Supp. Mot. Prelim. Inj. (Klayman II) [Dkt. # 10-1], at 4,32 (requesting an
injunction that, in part, "bar]s] Defendants from collecting records pertaining to Plaintiffs' online
communications and internet activities").
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To the extent plaintiffs are, in fact, requesting preliminary injunctive relief regarding any
alleged internet data surveillance activity, the Court need not address those claims for two
reasons. First, the Government has represented that any bulk collection of internet metadata
pursuant to Section 215 (50 U.S.C. § 1861) was discontinued in 2011, see Govt. Defs.' Opp'n to
PIs.' Mot. for Prelim. Inj. ("Govt.'s Opp'n") [Dkt. # 25], at 15-16,44-45; Ex. J to Decl, of James
J. Gilligan ("Gilligan Decl.") [Dkt. # 25-11] (Letter from James R. Clapper to the Sen. Ron
Wyden (July 25,2013), and therefore there is no possible ongoing harm that could be remedied
by injunctive relief. Second, to the extent plaintiffs challenge the Government's targeted
collection of internet data content pursuant to Section 702 (50 U.S.C. § 1881a) under the socalled "PRISM" program, which targets non-U.S. persons located outside the U.S., plaintiffs
have not alleged sufficient facts to show that the NSA has targeted any of their communications.
See Govt.'s Opp'n at 21-22, 44. Accordingly, plaintiffs lack standing, as squarely dictated by the
Supreme Court's recent decision in Clapper v. Amnesty International USA, 133 S. Ct. 1138
(2013), which concerns the same statutory provision. In Clapper, the Court held that
respondents, whose work purportedly involved engaging in phone and internet contact with
persons located abroad, lacked standing to challenge Section 702 because it was speculative
whether the government would seek to target, target, and actually acquire their communications.
See Clapper, 133. S. Ct. at 1148-50 ("[R]espondents' speculative chain of possibilities does not
4
For the reasons discussed below, the Court first finds that it lacks jurisdiction to
hear plaintiffs' Administrative Procedure Act ("APA") claim that the Government has
exceeded its statutory authority under the Foreign Intelligence Surveillance Act
("FISA"). Next, the Court finds that it does, however, have the authority to evaluate
plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it
was done pursuant to orders issued by the Foreign Intelligence Surveillance Court
("FISC"). And after careful consideration of the parties' pleadings and supplemental
pleadings, the representations made on the record at the November 18,2013 hearing
regarding these two motions, and the applicable law, the Court concludes that plaintiffs
have standing to challenge the constitutionality of the Government's bulk collection and
querying of phone record metadata, that they have demonstrated a substantial likelihood
of success on the merits of their Fourth Amendment claim, and that they will suffer
irreparable harm absent preliminary injunctive relief;' Accordingly, the Court will
GRANT, in part, the Motion for Preliminary Injunction in Klayman 1 (with respect to
establish that injury based on potential future surveillance is certainly impending or is fairly
traceable to § 1881a."). So too for plaintiffs here. (In fact, plaintiffs here have not even alleged
that they communicate with anyone outside the United States at all, so their claims under Section
702 are even less colorable than those of the plaintiffs in Clapper.)
Because I ultimately find that plaintiffs have made a sufficient showing to merit injunctive
relief on their Fourth Amendment claim, I do not reach their other constitutional claims under the
First and Fifth Amendments. See Seven-Sky v. Holder, 661 F.3d 1,46 (D.C. Cir. 2011) (noting
"the bedrock principle ofjudicial restraint that courts avoid prematurely or unnecessarily
deciding constitutional questions"), abrogated by Nat 'I Fed 'n ofIndep. Bus. v. Sebelius, 132 S.
Ct. 2566 (2012); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008) (noting "the fundamental principle ofjudicial restraint that courts should neither
anticipate a question of constitutional law in advance of the necessity of deciding it nor
formulate a rule of constitutional law broader than is required by the precise facts to which it is
to be applied" (citations and internal quotation marks omitted)).
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Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary
Injunction in Klayman II. However, in view of the significant national security interests
at stake in this case and the novelty of the constitutional issues, I will STAY my order
pending appeal.
BACKGROUND
On June 5, 2013, the British newspaper The Guardian reported the first of several
"leaks" of classified material from Edward Snowden, a former NSA contract employee,
which have revealed-and continue to reveal-multiple U.S. government intelligence
collection and surveillance programs. See Glenn Greenwald, NSA collecting phone
records ofmillions of Verizon customers daily, GUARDIAN (London), June 5, 2013. 8 That
initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon
Business Network Services to produce to the NSA on "an ongoing daily basis ... all call
detail records or 'telephony metadata' created by Verizon for communications (i)
between the United States and abroad; or (ii) wholly within the United States, including
local telephone calls." Secondary Order, In re Application ofthe [FBI] for an Order
Requiring the Production ofTangible Things/rom Verizon Business Network Services,
Inc. on Behalf 0/ MCI Communication Services, Inc. d/b/a Verizon Business Services, No.
BR 13-80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25-7]
("Apr. 25, 2013 Secondary Order"). According to the news article, this order "show[ed] .
. . that under the Obama administration the communication records of millions of US
Available at http://www.theguardian.com/world/20 13/junl06/nsa-phone-records-verizon-courtorder.
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citizens are being collected indiscriminately and in bulk-regardless of whether they are
suspected of any wrongdoing." Greenwald, supra. In response to this disclosure, the
Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this
litigation and in certain public statements, acknowledged the existence of a "program"
under which "the FBI obtains orders from the FISC pursuant to Section 215 [of the USA
PATRIOT Act] directing certain telecommunications service providers to produce to the
NSA on a daily basis electronic copies of 'call detail records.'" Govt.'s Opp'n at 8.
9
Follow-on media reports revealed other Government surveillance programs, including the
Government's collection of internet data pursuant to a program called "PRISM." See
Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data ofApple,
Google and others, GUARDIAN (London), June 6, 2013. 10
Although aspects of the program remain classified, including which other telecommunications
service providers besides Verizon Business Network Services are involved, the Government has
declassified and made available to the public certain facts about the program. See Office of the
Dir. ofNat'l Intelligence, DNI Statement on Recent Unauthorized Disclosure ofClassified
Information (June 6, 2013), available at http://www.dni.gov/index.php/newsroom/pressreleases/191-press-releases-20 13/868-dni-statement-on-recent-unauthorized-disclosures-ofclassified-information; Office of the Dir. ofNat'1 Intelligence, DNI Declassifies Intelligence
Community Documents Regarding Collection Under Section 702 ofthe Foreign Intelligence
Surveillance Act (FISA) (Aug. 21, 2013), available at
http://www.dnLgov/index.php/newsroom/press-releases/191-press-releases-2013/915-dnideclassifies-intelligence-community-documents-regarding-collection-under-section-702-of-theforeign-intelligence-surveillance-act-fisa; Office of the Dir. of Nat' I Intelligence, DNI Clapper
Declassifies Intelligence Community Documents Regarding Collection Under Section 501 ofthe
Foreign Intelligence Surveillance Act (FISA) (Sept. 10,2013), available at
http://www.dni.gov/index.php/newsroom/press-releases/ 191-press-reieases-2013/927-draftdocument; Administration White Paper: Bulk Collection of Telephony Metadata under Section
215 of the USA PATRIOT Act (Aug. 9,2013), available at
http://apps.washingtonpost.com/g/page/politics/obama-administration-white-paper-on-nsasurveillance-oversight/3 88/.
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10 Available
at http://www.theguardian.com/world/2013/junl06/us-tech-giants-nsa-data.
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Soon after the first public revelations in the news media, plaintiffs filed their
complaints in these two cases on June 6, 2013 (Klayman I) and June 12,2013 (Klayman
II), alleging that the Government, with the participation of private companies, is
conducting "a secret and illegal government scheme to intercept and analyze vast
quantities of domestic telephonic communications," Second Am. Cornpl.
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2 (Klayman
I), and "of communications from the Internet and electronic service providers," Am.
Compl.
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2 (Klayman II). Plaintiffs in Klayman I-attorney Larry Klayman, founder of
Freedom Watch, a public interest organization, and Charles Strange, the father of
Michael Strange, a cryptologist technician for the NSA and support personnel for Navy
SEAL Team VI who was killed in Afghanistan when his helicopter was shot down in
2011-assert that they are subscribers ofVerizon Wireless and bring suit against the
NSA, the Department of Justice ("DOJ"), and several executive officials (President
Barack H. Obama, Attorney General Eric H. Holder, Jr., General Keith B. Alexander,
Director of the NSA, and U.S. District Judge Roger Vinson), as well as Verizon
Communications and its chief executive officer. Second Am. Cornpl,
Aff.
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3; Strange Aff.
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9-19; Klayman
2. And plaintiffs in Klayman Il-Mr. Klayman and Mr. Strange
again, along with two private investigators, Michael Ferrari and Matthew Garrisonbring suit against the same Government defendants, as well as Facebook, Yahoo!,
Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple, asserting
that plaintiffs are "subscribers, users, customers, and otherwise avail themselves to" these
named internet and/or telephone service provider companies. Am. Cornpl.
8
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1, 11-14;
Klayman Aff. ~ 3; Klayman Suppl. Aff. ~ 3; Strange Aff. ~ 3. 11 Specifically, plaintiffs
allege that the Government has violated their individual rights under the First, Fourth,
and Fifth Amendments of the Constitution and has violated the Administrative Procedure
Act ("APA") by exceeding its statutory authority under FISA.
12
Second Am. Compl. ~~
1-8,49-99.
I.
Statutory Background
A.
FISA and Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)
In 1978, Congress enacted the Foreign Intelligence Surveillance Act, 50 U.S.C. §§
180I et seq. ("FISA"), "to authorize and regulate certain governmental electronic
surveillance of communications for foreign intelligence purposes." Clapper v. Amnesty
Int'l USA, 133 S. Ct. 1138, 1143 (2013). Against the backdrop of findings by the Senate
Select Committee to Study Government Operations with Respect to Intelligence
Activities (the "Church Committee") that the executive branch had, for decades, engaged
in warrantless domestic intelligence-gathering activities that had illegally infringed the
Fourth Amendment rights of American citizens, Congress passed FISA "in large measure
[as] a response to the revelations that warrantless electronic surveillance in the name of
national security has been seriously abused." S. Rep. No. 95-604, at 7. In the view of the
Senate Judiciary Committee, the act went "a long way in striking a fair and just balance
between protection of national security and protection of personal liberties. " Id. at 7.
11 See
supra, notes 5, 6.
12 Plaintiffs also allege certain statutory violations by the private company defendants, Second
Am. CompI. "81-95, which are not at issue for purposes of the Preliminary Injunction Motions,
as well as common law privacy tort claims, Second Am. CompI. "70-80.
9
FISA created a procedure for the Government to obtain ex parte judicial orders
authorizing domestic electronic surveillance upon a showing that, inter alia, the target of
the surveillance was a foreign power or an agent of a foreign power. 50 U.S.C. §§
1804(a)(3), 1805(a)(2). In enacting FISA, Congress also created two new Article III
courts-the Foreign Intelligence Surveillance Court ("FISC"), composed of eleven U.S.
district judges, "which shall have jurisdiction to hear applications for and grant orders
approving" such surveillance, § 1803(a)(1), and the FISC Court of Review, composed of
three U.S. district or court of appeals judges, "which shall have jurisdiction to review the
denial of any application made under [FISA]," § 1803(b).I3
In addition to authorizing wiretaps, § § 1801-1812, FISA was subsequently
amended to add provisions enabling the Government to obtain ex parte orders authorizing
physical searches, §§ 1821-1829, as well as pen registers and trap-and-trace devices, §§
1841-1846. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No.1 03359, § 807(a)(3), 108 Stat. 3423; Intelligence Authorization Act for Fiscal Year 1999,
13 The
eleven U.S. district judges are appointed by the Chief Justice of the United States to serve
on the FISC for a term of seven years each. 50 U.S.C. § 1803(a)(l), (d). They are drawn from at
least seven of the twelve judicial circuits in the United States, and at least three of the judges
must reside within twenty miles of the District of Columbia. § 1803(a)(l). For these eleven
district judges who comprise the FISC at anyone time, their service on the FISC is in addition
to, not in lieu of, their normal judicial duties in the districts in which they have been appointed.
See Theodore W. Ruger, ChiefJustice Rehquist's Appointments to the FISA Court: An Empirical
Perspective, 101 Nw. U. L. REv. 239, 244 (2007) ("Service on the FISA Court is a parttime position. The judges rotate through the court periodically and maintain regular district court
caseloads in their home courts."). Accordingly, service on the FISC is, at best, a part-time
assignment that occupies a relatively small part of each judge's annual judicial duties. Further,
as a result of the requirement that at least three judges reside within twenty miles of the nation's
capital, a disproportionate number of the FISC judges are drawn from the district courts of the
District of Columbia and the Eastern District of Virginia, see id. at 258 (Appendix) (listing Chief
Justice Rehnquist's twenty-five appointments to the FISC, six of which came from the D.D.C.
and E.D. Va.).
10
Pub. L. No. 105-272, § 601(2), 112 Stat. 2396 ("1999 Act"). In 1998, Congress added a
"business records" provision to FISA. See 1999 Act § 602. Under that provision, the
FBI was permitted to apply for an ex parte order authorizing specified entities, such as
common carriers, to release to the FBI copies of business records upon a showing in the
FBI's application that "there are specific and articulable facts giving reason to believe
that the person to whom the records pertain is a foreign power or an agent of a foreign
power." 50 U.S.C. § 1862(b)(2)(B) (2000).
Following the September 11,2001 terrorist attacks, Congress passed the USA
PATRIOT Act, which made changes to FISA and several other laws. Pub. L. No. 10756, 115 Stat. 272 (2001). Section 215 of the PATRIOT Act replaced FISA's businessrecords provision with a more expansive "tangible things" provision. Codified at 50
U.S.C. § 1861, it authorizes the FBI to apply "for an order requiring the production of
any tangible things (including books, records, papers, documents, and other items) for an
investigation to obtain foreign intelligence information not concerning a United States
person or to protect against international terrorism or clandestine intelligence activities."
§ 1861(a)(1). While this provision originally required that the FBI's application "shall
specify that the records concerned are sought for" such an investigation, § 1861(b)(2)
(Supp. 12001), Congress amended the statute in 2006 to provide that the FBI's
application must include "a statement of facts showing that there are reasonable grounds
to believe that the tangible things sought are relevant to an authorized investigation ... to
obtain foreign intelligence information not concerning a United States person or to
protect against international terrorism or clandestine intelligence activities." §
11
1861(b)(2)(A); see USA PATRIOT Improvement and Reauthorization Act of2005, Pub.
L. No. 109-177, § 106(b), 120 Stat. 192 ("USA PATRIOT Improvement and
Reauthorization Act").
Section 1861 also imposes other requirements on the FBI when seeking to use this
authority. For example, the investigation pursuant to which the request is made must be
authorized and conducted under guidelines approved by the Attorney General under
Executive Order No. 12,333 (or a successor thereto). 50 U.S.C. § 1861(a)(2)(A),
(b)(2)(A). And the FBI's application must "enumerat]e] ... minimization procedures
adopted by the Attorney General ... that are applicable to the retention and dissemination
by the [FBI] of any tangible things to be made available to the [FBI] based on the order
requested." § 1861(b)(2)(B). The statute defines "minimization procedures" as, in
relevant part, "specific procedures that are reasonably designed in light of the purpose
and technique of an order for the production of tangible things, to minimize the retention,
and prohibit the dissemination, of nonpublicly available information concerning
unconsenting [U.S.] persons consistent with the need of the [U.S.] to obtain, produce, and
disseminate foreign intelligence information." § 1861(g)(2). If the FISC judge finds that
the FBI's application meets these requirements, he "shall enter an ex parte order as
requested, or as modified, approving the release of tangible things" (hereinafter,
"production order"). § 1861 (c)(1); see also § 1861 (f)(1 )(A) ("the term 'production order'
means an order to produce any tangible thing under this section").
Under Section 1861 's "use" provision, information that the FBI acquires through
such a production order "concerning any [U.S.] person may be used and disclosed by
12
Federal officers and employees without the consent of the [U.S.] person only in
accordance with the minimization procedures adopted" by the Attorney General and
approved by the FISC. § 1861(h). Meanwhile, recipients of Section 1861 production
orders are obligated not to disclose the existence of the orders, with limited exceptions. §
1861(d)(1).
B.
Judicial Review by the FISC
While the recipient of a production order must keep it secret, Section 1861 does
provide the recipient-but only the recipient-a right ofjudicial review of the order
before the FISC pursuant to specific procedures. Prior to 2006, recipients of Section
1861 production orders had no express right to judicial review of those orders, but
Congress added such a provision when it reauthorized the PATRIOT Act that year. See
USA PATRIOT Improvement and Reauthorization Act § 106(f); 1 D. KRIS & J. WILSON,
NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS § 19:7 (2d ed. 2012) ("Kris &
Wilson") ("Prior to the Reauthorization Act in 2006, FISA did not allow for two-party
litigation before the FISC.").
Under Section 1861, "[ a] person receiving a production order may challenge the
legality of that order by filing a petition with the [petition review pool of FISC judges]."
50 U.S.C. § 1861(f)(2)(A)(i); see § 1803(e)(1 ).14 The FISC review pool judge
considering the petition may grant the petition "only if the judge finds that [the] order
14 The
three judges who reside within twenty miles of the District of Columbia comprise the
petition review pool (unless all three are unavailable, in which case other FISC judges may be
designated). § 1803(e)(1). In addition to reviewing petitions to review Section 1861 production
orders pursuant to § 1861(f), the review pool also has jurisdiction to review petitions filed
pursuantto § 1881a(h)(4). Id.
13
does not meet the requirements of [Section 1861] or is otherwise unlawful." §
1861(1)(2)(B). Once the FISC review pool judge rules on the petition, either the
Government or the recipient of the production order may seek an en bane hearing before
the full FISC, § 1803(a)(2)(A), or may appeal the decision by filing a petition for review
with the FISC Court of Review, § 1861(1)(3). Finally, after the FISC Court of Review
renders a written decision, either the Government or the recipient of the production order
may then appeal this decision to the Supreme Court on petition for writ of certiorari. §§
1861(1)(3), 1803(b). A production order "not explicitly modified or set aside consistent
with [Section 1861(1)] shall remain in full effect." § 1861(1)(2)(D).
Consistent with other confidentiality provisions of FISA, Section 1861 provides
that "[a]ll petitions under this subsection shall be filed under seal," § 1861(1)(5), and the
"record of proceedings ... shall be maintained under security measures established by
the Chief Justice of the United States, in consultation with the Attorney General and the
Director of National Intelligence," § 1861(1)(4). See also § 1803(c).
II.
Collection of Bulk Telephony Metadata Pursuant to Section 1861
To say the least, plaintiffs and the Government have portrayed the scope of the
Government's surveillance activities very differently. IS For purposes of resolving these
preliminary injunction motions, however, as will be made clear in the discussion below, it
15 In addition to alleging that the NSA has "direct access" to Verizon's databases, Second Am.
CompI. ~ 7, and is collecting location information as part of "call detail records," PIs. Mem. at
10, Mr. Klayman and Mr. Strange also suggest that they are "prime target[s]" of the Government
due to their public advocacy and claim that the Government is behind alleged inexplicable text
messages being sent from and received on their phones, Pis.' Mem. at 13-16; Klayman Aff. ~ 11;
Strange Aff. ~~ 12-17.
14
will suffice to accept the Government's description of the phone metadata collection and
querying program. Cf Cobell v. Norton, 391 F.3d 251,261 (D.C. Cir. 2004) (evidentiary
hearing on preliminary injunction is necessary only if the court must make credibility
determinations to resolve key factual disputes in favor of the moving party).
In broad overview, the Government has developed a "counterterrorism program"
under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone
records, which it characterizes as "business records" created by certain
telecommunications companies (the "Bulk Telephony Metadata Program"). The records
collected under this program consist of "metadata," such as information about what
phone numbers were used to make and receive calls, when the calls took place, and how
long the calls lasted. Decl. of Acting Assistant Director Robert J. Holley, Federal Bureau
of Investigation ("Holley Decl.") [Dkt. # 25-5], at
~
5; Decl, of Teresa H. Shea, Signals
Intelligence Director, National Security Agency ("Shea Decl.") [Dkt. # 25-4], at
~
7;
Primary Order, In re Application ofthe [FBI] for an Order Requiring the Production of
Tangible Things From [Redacted], No. BR 13-158 at 3 n.l (FISC Oct. 11,2013)
(attached as Ex. B to Gilligan Decl.) [Dkt. # 25-3] ("Oct. 11,2013 Primary Order").16
According to the representations made by the Government, the metadata records
collected under the program do not include any information about the content of those
16 Oct. 11,2013 Primary Order at 3 n.l ("For purposes of this Order 'telephony metadata'
includes comprehensive communications routing information, including but not limited to
session identifying information (e.g., originating and terminating telephone number,
International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment
Identity (lMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and
duration of call.").
15
calls, or the names, addresses, or financial information of any party to the calls. Holley
Dec!' ,-r,-r 5, 7; Shea Dec!' ,-r 15; Oct. 11,2013 Primary Order at 3 n.I. 17 Through targeted
computerized searches of those metadata records, the NSA tries to discern connections
between terrorist organizations and previously unknown terrorist operatives located in the
United States. Holley Dec!' ,-r 5; Shea Dec!' ,-r,-r 8-10, 44.
The Government has conducted the Bulk Telephony Metadata Program for more
than seven years. Beginning in May 2006 and continuing through the prescnt.l'' the FBI
has obtained production orders from the FISC under Section 1861 directing certain
telecommunications companies to produce, on an ongoing daily basis, these telephony
metadata records, Holley Dec!' ,-r 6; Shea Decl. ,-r 13, which the companies create and
maintain as part of their business of providing telecommunications services to customers,
Holley Decl. ,-r 10; Shea Decl. ,-r 18. The NSA then consolidates the metadata records
provided by different telecommunications companies into one database, Shea Dec!' ,-r 23,
and under the FISC's orders, the NSA may retain the records for up to five years, id. ,-r
17 Plaintiffs have alleged that the Government has also collected location informatiorf for cell
phones. Second Am. Compo ~ 28; PIs.' Mem. at 10-11. While more recent FISC opinions
expressly state that cell-site location information is not covered by Section 1861 production
orders, see, e.g., Oct. 11,2013 Primary Order at 3 n.1, the Government has not affirmatively
represented to this Court that the NSA has not, at any point in the history of the Bulk Telephony
Metadata Program, collected location information (in one technical format or another) about cell
phones. See, e.g., Govt.'s Opp'n at 9 (defining telephony metadata and noting what is not
included); Order, In re Application ofthe [FBI] for an Order Requiring the Production of
Tangible Things from [Redacted], No. BR 06-05 at 2 (FISC May 24, 2006), available at
http://www.dni.gov/index.php/newsroom/press-releases/191-press-releases-2013/927-draftdocument (defining telephony metadata and noting what is not included, but not expressly stating
that the order does not authorize the production of cell-site location information).
18 The most recent FISC order authorizing the Bulk Telephony Metadata Program that the
Government has disclosed (in redacted form, directed to an unknown recipient) expires on
January 3, 2014. See Oct. 11,2013 Primary Order at 17.
16
30; see Oct. 11,2013 Primary Order at 14. According to Government officials, this
aggregation of records into a single database creates "an historical repository that permits
retrospective analysis," Govt.'s Opp'n at 12, enabling NSA analysts to draw connections,
across telecommunications service providers, between numbers reasonably suspected to
be associated with terrorist activity and with other, unknown numbers. Holley Decl. ~~ 5,
8; Shea Decl.
~~
46, 60.
The FISC orders governing the Bulk Telephony Metadata Program specifically
provide that the metadata records may be accessed only for counterterrorism purposes
(and technical database maintenance). Holley Decl.
~
8; Shea Decl.
~
30. Specifically,
NSA intelligence analysts, without seeking the approval ofa judicial officer, may access
the records to obtain foreign intelligence information only through "queries" of the
records performed using "identifiers," such as telephone numbers, associated with
terrorist activity." An "identifier" (i.e., selection term, or search term) used to start a
query of the database is called a "seed," and "seeds" must be approved by one of twentytwo designated officials in the NSA's Homeland Security Analysis Center or other parts
of the NSA's Signals Intelligence Directorate. Shea Decl.
~~
19,31. Such approval may
be given only upon a determination by one of those designated officials that there exist
facts giving rise to a "reasonable, articulable suspicion" ("RAS") that the selection term
19 In her declaration, Teresa H. Shea, Director of the Signals Intelligence Directorate at the NSA,
states that "queries," or "term searches," of the metadata database are conducted "using metadata
'identifiers,' e.g., telephone numbers, that are associated with a foreign terrorist organization."
Shea Decl. ~ 19 (emphasis added). If a telephone number is only an example of an identifier that
may be used as a search term, it is not clear what other "identifiers" may be used to query the
database, and the Government has not elaborated. See, e.g., Oct. 11,2013 Primary Order at 5
nA, 7-10 (redacting text that appears to discuss "selection terms"),
17
to be queried is associated with one or more of the specified foreign terrorist
organizations approved for targeting by the FISC. Holley Decl, ~~ 15-16. 20 In 2012, for
example, fewer than 300 unique identifiers met this RAS standard and were used as
"seeds" to query the metadata, but "the number of unique identifiers has varied over the
years." Shea Dec!.
~
24.
When an NSA intelligence analyst runs a query using a "seed," the minimization
procedures provide that query results are limited to records of communications within
three "hops" from the seed. Id.
~
22. The query results thus will include only identifiers
and their associated metadata having a direct contact with the seed (the first "hop"),
identifiers and associated metadata having a direct contact with first "hop" identifiers (the
second "hop"), and identifiers and associated metadata having a direct contact with
second "hop" identifiers (the third "hop"). Id.
~
22; Govt. 's Opp'n at 11. In plain
English, this means that if a search starts with telephone number (123) 456-7890 as the
"seed," the first hop will include all the phone numbers that (123) 456-7890 has called or
received calls from in the last five years (say, 100 numbers), the second hop will include
all the phone numbers that each of those 100 numbers has called or received calls from in
the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or
10,000 total), and the third hop will include all the phone numbers that each of those
10,000 numbers has called or received calls from in the last five years (say, 100 numbers
for each one of the 10,000 "second hop" numbers, or 1,000,000 total). See Shea Decl,
~
A determination that a selection term meets the RAS standard remains effective for 180 days
for any selection term reasonably believed to be used by a U.S. person, and for one year for all
other selection terms. See Oct. 11,2013 Primary Order at 10.
20
18
25 n.1. The actual number of telephone numbers and their associated metadata captured
in any given query varies, of course, but in the absence of any specific representations
from the Government about typical query results, it is likely that the quantity of phone
numbers captured in any given query would be very large."
After stating that fewer than 300 unique identifiers met the RAS standard and were used as
"seeds" to query the metadata in 2012, Ms. Shea notes that "[b]ecause the same seed identifier
can be queried more than once over time, can generate multiple responsive records, and can be
used to obtain contact numbers up to three 'hops' from the seed identifier, the number of
metadata records responsive to such queries is substantially larger than 300, but is still a very
small percentage ofthe total volume ofmetadata records." Shea Decl. ~ 24 (emphasis added).
The first part of this assertion is a glaring understatement, while the second part is virtually
meaningless when placed in context. First, as the sample numbers I have used in the text above
demonstrate, it is possible to arrive at a query result in the millions within three hops while using
even conservative numbers-needless to say, this is "substantially larger than 300." After all,
even if the average person in the United States does not call or receive calls from 100 unique
phone numbers in one year, what about over a five-year period? And second, it belabors the
obvious to note that even a few million phone numbers is "a very small percentage of the total
volume of metadata records" if the Government has collected metadata records on hundreds of
millions of phone numbers.
21
But it's also easy to imagine the spiderweb-like reach of the three-hop search growing
exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that
there is a person living in New York City who has a phone number that meets the RAS standard
and is approved as a "seed." And suppose this person, who mayor may not actually be
associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in
my example. But now suppose that one of the numbers he calls is his neighborhood Domino's
Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial
a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from
the Government's book of understatement, it's "substantially larger" than the 100 in the second
hop of my example, and would therefore most likely result in exponential growth in the scope of
the query and lead to millions of records being captured by the third hop. (I recognize that some
minimization procedures described in recent FISC orders permitting technical personnel to
access the metadata database to "defeat [] high volume and other unwanted [] metadata," Oct. 11,
2013 Primary Order at 6, may, in practice, reduce the likelihood of my Domino's hypothetical
example occurring. But, of course, that does not change the baseline fact that, by the terms of
the FISC's orders, the NSA is permitted to run queries capturing up to three hops that can
conceivably capture millions of Americans' phone records. Further, these queries using nonRAS-approved selection terms, which are permitted to make the database "usable for intelligence
analysis," id. at 5, may very well themselves involve searching across millions of records.)
19
Once a query is conducted and it returns a universe of responsive records (i.e., a
universe limited to records of communications within three hops from the seed), trained
NSA analysts may then perform new searches and otherwise perform intelligence
analysis within that universe of data without using RAS-approved search terms. See Shea
Decl.
~
26 (NSA analysts may "chain contacts within the query results themselves"); Oct.
11, 2013 Primary Order." According to the Government, following the "chains of
communication"-which, for chains that cross different communications networks, is
only possible if the metadata is aggregated-allows the analyst to discover information
that may not be readily ascertainable through other, targeted intelligence-gathering
techniques. Shea Decl,
~
46. For example, the query might reveal that a seed telephone
number has been in contact with a previously unknown U.S. telephone number-i.e., on
the first hop. See id. ~ 58. And from there, "contact-chaining" out to the second and
third hops to examine the contacts made by that telephone number may reveal a contact
with other telephone numbers already known to the Government to be associated with a
foreign terrorist organization. Id.
~~
47, 62. In short, the Bulk Telephony Metadata
Program is meant to detect: (1) domestic U.S. phone numbers calling outside of the U.S.
to foreign phone numbers associated with terrorist groups; (2) foreign phone numbers
Under the terms of the most recent FISC production order available, "[q]ueries of the BR
metadata using RAS-approved selection terms may occur either by manual analyst query or
through the automated query process described below. This automated query process queries the
collected BR metadata (in a 'collection store') with RAS-approved selection terms and returns
the hop-limited results from those queries to a 'corporate store.' The corporate store may then be
searched by appropriately and adequately trained personnel for valid foreign intelligence
purposes, without the requirement that those searches use only RAS-approved selection terms."
Oct. 11,2013 Primary Order at 11 (footnote omitted). This "automated query process" was first
approved by the FISC in a November 8, 2012 order. Id. at 11 n.ll.
22
20
associated with terrorist groups calling into the U.S. to U.S. phone numbers; and (3)
"possible terrorist-related communications" between U.S. phone numbers inside the U.S.
See id. ~ 44.
Since the program began in May 2006, the FISC has repeatedly approved
applications under Section 1861 and issued orders directing telecommunications service
providers to produce records in connection with the Bulk Telephony Metadata Program.
Shea Decl.
~~
13-14. Through October 2013, fifteen different FISC judges have issued
thirty-five orders authorizing the program. Govt.'s Opp'n at 9; see also Shea Decl.
13-14; Holley Decl.
~
~~
6. Under those orders, the Government must periodically seek
renewal of the authority to collect telephony records (typically every ninety days). Shea
Decl.
~
14. The Government has nonetheless acknowledged, as it must, that failures to
comply with the minimization procedures set forth in the orders have occurred. For
instance, in January 2009, the Government reported to the FISC that the NSA had
improperly used an "alert list" of identifiers to search the bulk telephony metadata, which
was composed of identifiers that had not been approved under the RAS standard. Id. ~
37; Order, In re Production a/Tangible Things from [Redacted], No. BR 08-13,2009
WL 9150913, at *2 (FISC Mar. 2, 2009) ("Mar. 2, 2009 Order"). After reviewing the
Government's reports on its noncompliance, Judge Reggie Walton of the FISC concluded
that the NSA had engaged in "systematic noncompliance" with FISC-ordered
minimization procedures over the preceding three years, since the inception of the Bulk
Telephony Metadata Program, and had also repeatedly made misrepresentations and
inaccurate statements about the program to the FISC judges. Mar. 2, 2009 Order, 2009
21
WL 9150913, at *2_5. 23 As a consequence, Judge Walton concluded that he had no
confidence that the Government was doing its utmost to comply with the court's orders,
and ordered the NSA to seek FISC approval on a case-by-case basis before conducting
any further queries of the bulk telephony metadata collected pursuant to Section 1861
orders. Id. at *9; Shea Decl.
~~
38-39. This approval procedure remained in place from
March 2009 to September 2009. Shea Decl.
~~
38-39.
Notwithstanding this six-month "sanction" imposed by Judge Walton, the
Government apparently has had further compliance problems relating to its collection
programs in subsequent years. In October 2011, the Presiding Judge of the FISC, Judge
John Bates, found that the Government had misrepresented the scope of its targeting of
certain internet communications pursuant to 50 U.S.C. § 1881a (i.e., a different collection
program than the Bulk Telephony Metadata Program at issue here). Referencing the
2009 compliance issue regarding the NSA's use of unauthorized identifiers to query the
metadata in the Bulk Telephony Metadata Program, Judge Bates wrote: "the Court is
Judge Walton noted that, "since the earliest days of the FISC-authorized collection of calldetail records by the NSA, the NSA has on a daily basis, accessed the BR metadata for purposes
of comparing thousands of non-RAS-approved telephone identifiers on its alert list against the
BR metadata in order to identify any matches. Such access was prohibited by the governing
minimization procedures under each of the relevant Court orders." Mar. 2, 2009 Order, 2009
WL 9150913, at *2. He went on to conclude: "In summary, since January 15,2009, it has finally
come to light that the FISC's authorizations of this vast collection program have been premised
on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC
existed from the inception of its authorized collection in May 2006, buttressed by repeated
inaccurate statements made in the government's submissions, and despite a government-devised
and Court-mandated oversight regime. The minimization procedures proposed by the
government in each successive application and approved and adopted as binding by the orders of
the FISC have been so frequently and systemically violated that it can fairly be said that this
critical element of the overall BR regime has never functioned effectively." Id. at *5.
23
22
troubled that the government's revelations regarding NSA's acquisition of Internet
transactions mark the third instance in less than three years in which the government has
disclosed a substantial misrepresentation regarding the scope of a major collection
program." Mem. Op., [Redacted}, No. [redacted], at 16 n.14 (FISC Oct. 3, 2011).24 Both
Judge Walton's and Judge Bates's opinions were only recently declassified by the
Government in response to the Congressional and public reaction to the Snowden leaks."
ANALYSIS
I will address plaintiffs' statutory claim under the APA before I tum to their
constitutional claim under the Fourth Amendment.
I.
Statutory Claim Under the APA
Invoking this Court's federal question jurisdiction under 28 U.S.C. §. 1331,
plaintiffs allege that the Government's phone metadata collection and querying program
exceeds the statutory authority granted by FISA's "tangible things" provision, 50 U.S.C.
§ 1861, and thereby violates the Administrative Procedure Act C'APA"), 5 U.S.C. § 706.
Available at http://www.dni.gov/index.php/newsroomlpress-releases/191-press-releases2013/915-dni-declassifies-intelligence-community-documents-regarding-collection-undersection-702-of-the-foreign-intelligence-surveillance-act-fisa. Whatever the second "substantial
misrepresentation" was, the Government appears to have redacted it from the footnote in that
opinion.
24
See Office of the Dir. of Nat'1Intelligence, DNI Declassifies Intelligence Community
Documents Regarding Collection Under Section 702 ofthe Foreign Intelligence Surveillance Act
(FISA) (Aug. 21, 2013), available at http://www.dnLgov/index.php/newsroomipressreleases/191-press-releases-20 13/9l5-dni-declassifies-intelligence-community-documentsregarding-collection-under-section-702-of-the-foreign- intelligence-surveillance-act_fisa; Office
of the Dir. of Nat'1Intelligence, DNI Clapper Declassifies Intelligence Community Documents
Regarding Collection Under Section 501 ofthe Foreign Intelligence Surveillance Act (FISA)
(Sept. 10,2013), available at http://www.dni.gov/index.php/newsroomlpress-releases/191-pressreleases-20 13/927-draft-document.
25
23
See Second Am. CompI.
~~
96-99; PIs.' Mem. at 2,17-19; PIs.' Reply in Supp. of Mots.
for Prelim. Inj. ("PIs.' Reply") [Dkt. # 31], at 5-11. In particular, plaintiffs argue that the
bulk records obtained under the Bulk Telephony Metadata Program are not "relevant" to
authorized national security investigations, see 50 U.S.C. § 1861(b)(2)(A), and that the
FISC may not prospectively order telecommunications service providers to produce
records that do not yet exist. See Pis.' Mem. at 17-19; Pis.' Reply at 5-11. In response,
the Government argues that this Court lacks subject matter jurisdiction over this statutory
claim because Congress impliedly precluded APA review of such claims. Government
Defs.' Supplemental Br. in Opposition to Pis.' Mots. Prelim. Inj. ("Govt. 's SuppI. Br.")
[Dkt. # 43], at 2. For the following reasons, I agree with the Government that I am
precluded from reviewing plaintiffs' APA claim.
The APA "establishes a cause of action for those 'suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency action. '" Koretoff v.
Vilsack, 614 F.3d 532, 536 (D.C. Cir. 2010) (quoting 5 U.S.C. § 702). In particular, the
APA permits such aggrieved persons to bring suit against the United States and its
officers for "relief other than money damages," 5 U.S.C. § 702, such as the injunctive
relief plaintiffs seek here. This general waiver of sovereign immunity does not apply,
however, "if any other statute that grants consent to suit expressly or impliedly forbids
the relief which is sought." Id. Similarly the APA's "basic presumption ofjudicial
review [of agency action]," Abbott Labs v. Gardner, 387 U.S. 136,140 (1967), does not
apply "to the extent that ... statutes preclude judicial review," 5 U.S.C. § 701(a)(1).
Accordingly, "[tjhe presumption favoring judicial review of administrative action is just
24
that-a presumption," Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984), and
it may be overcome "whenever the congressional intent to preclude judicial review is
'fairly discernible in the statutory scheme. ", Id. at 351. Assessing "[w]hether a statute
precludes judicial review of agency action ... is a question of congressional intent, which
is determined from the statute's' express language,' as well as 'from the structure of the
statutory scheme, its objectives, its legislative history, and the nature of the
administrative action involved.'" Koretoff, 614 F.3d at 536 (quoting Block, 467 U.S. at
345); see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994).
The Government insists that two statutes-50 U.S.C. § 1861, the "tangible things"
provision ofFISA itself, and 18 U.S.C. § 2712, a provision of the USA PATRIOT Act,
codified in the Stored Communications Act-impliedly preclude this Court's review of
plaintiffs' statutory APA claim. Govt.'s Opp'n at 26-31; Govt.'s Suppl. Br. at 1-4. The
text of Section 1861, and the structure and purpose of the FISA statutory scheme, as a
whole, do indeed reflect Congress's preclusive intent. Stated simply, Congress created a
closed system ofjudicial review of the government's domestic foreign intelligencegathering, generally, 50 U.S.C. § 1803, and of Section 1861 production orders,
specifically, § 1861(1). This closed system includes no role for third parties, such as
plaintiffs here, nor courts besides the FISC, such as this District Court. Congress's
preclusive intent is therefore sufficiently clear. How so?
First, and most directly, the text of the applicable provision ofFISA itself, Section
1861, evinces Congress's intent to preclude APA claims like those brought by plaintiffs
before this Court. Section 1861 expressly provides a right ofjudicial review of orders to
25
produce records, but it only extends that right to the recipients of such orders, such as
telecommunications service providers. See 50 U.S.C. § 1861(f). Congress thus did not
preclude all judicial review of Section 1861 production orders, but I, of course, must
determine "whether Congress nevertheless foreclosed review to the class to which the
[plaintiffs] belon[g]." Block, 467 U.S. at 345-46. And "when a statute provides a
detailed mechanism for judicial consideration of particular issues at the behest of
particular persons, judicial review of those issues at the behest of other persons may be
found to be impliedly precluded." Id. at 349 (emphases added); see also id. at 345-48
(holding that the statutory scheme of the Agricultural Marketing Agreement Act
("AMAA"), which expressly provided a mechanism for milk handlers to obtain judicial
review of milk market orders issued by the Secretary of Agriculture, impliedly precluded
review of those orders in suits brought by milk consumers). That is exactly the case here.
Congress has established a detailed scheme ofjudicial review of the particular issue of
the "legality" of Section 1861 production orders at the behest of only recipients of those
orders. 50 U.S.C. §§ 1861(f)(2)(A)(i) ("A person receiving a production order may
challenge the legality of that order by filing a petition with the [petition review pool of
FISC judges]." (emphasis added)), 1861(f)(2)(B) ("A judge considering a petition to
modify or set aside a production order may grant such petition only if the judge finds that
such order does not meet the requirements ofthis section or is otherwise unlawful."
(emphasis added)). And that scheme ofjudicial review places such challenges before the
FISC: Section 1861 permits such challenges to be heard only by the petition review pool
26
of the FISC. See § 1861(f)(2)(A)(i); § 1803(e)(l) (the FISC petition review pool "shall
have jurisdiction to review petitions filed pursuant to section 1861(f)(l) ... of this title").
Second, the purpose and legislative history of Section 1861 also support the
conclusion that Congress intended to preclude APA claims by third parties. Simply put,
Congress did not envision that third parties, such as plaintiffs, would even know about the
existence of Section 1861 orders, much less challenge their legality under the statute.
See, e.g., H.R. Rep. No. 109-174 at 128,268 (2005). As the Government points out,
"Section [1861], like other provisions of FISA, establishes a secret and expeditious
process that involves only the Government and the recipient of the order" in order to
"promote its effective functioning as a tool for counter-terrorism." Govt.'s Opp'n at 29;
see also 50 U.S.C. § 1861(d)(l) (recipient of production order may not "disclose to any
other person that the [FBI] has sought or obtained" an order under Section 1861); §
1861(f)( 5) ("All petitions under this subsection shall be filed under seal. "); § 1861(f)(4)
("The record of proceedings, including petitions filed, orders granted, and statements of
reasons for decision, shall be maintained under security measures established by the
Chief Justice of the United States, in consultation with the Attorney General and the
Director of National Intelligence."). Congress did think about third parties, such as
persons whose records would be targeted, when it created a right to judicial review of
Section 1861 production orders for recipients, but it recognized that extending a similar
right to third parties would make little sense in light of the secrecy of such orders. See
27
H.R. Rep. No. 109-174 at 128,268; Govt.'s Opp'n at 29 n.14; Govt.'s Suppl. Br. at 3.
26
Congress therefore considered the precise issue of challenges to the legality of Section
1861 orders, and the statute reflects its ultimate conclusions as to who may seek review
and in what court. § 1861(f); see also H.R. Rep. No. 109-174 at 128-29,134,137
(rejecting amendment that would have allowed recipients of Section 1861 orders to bring
challenges to such orders in federal district court).
But even setting aside the specific fact that FISA does not contain a judicial
review provision for third parties regarding Section 1861 orders, Congress's preclusive
intent is all the more evident when one considers, viewing FISA as a whole, that
Congress did not contemplate the participation of third parties in the statutory scheme at
all. See Ark. Dairy Coop. Ass'n v. Dep't ofAgric., 573 F.3d 815,822 (D.C. Cir. 2009)
(noting that in reaching its decision in Block, "the Supreme Court did not concentrate
simply on the presence or absence of an explicit right of appeal [for consumers] in the
AMAA, but instead noted that in the 'complex scheme' of the AMAA, there was no
provision for consumer participation of any kind.")." Indeed, until 2006, FISA did not
Congress has also not provided a suppression remedy for tangible things obtained under
Section 1861, in contrast to the "use of information" provisions under nearly every other
subchapter ofFISA, which contain such a remedy. Compare 50 U.S.C. § 1861 with §§ 1806(e)
(evidence obtained or derived from an electronic surveillance), 1825(f) (evidence obtained or
derived from a physical search), 1845(e) (evidence obtained or derived from the use ofa pen
register or trap and trace device), 1881e (deeming information acquired under the section to be
acquired "from an electronic surveillance" for purposes of Section 1806).
26
27 In Arkansas Dairy, our Circuit Court addressed a suit concerning the AMAA, the same statute
at issue in Block. The government, relying on Block's holding that milk consumers were barred
from bringing a claim because the statute did not grant them an express right to judicial review,
argued that milk producers likewise could not bring an action because the AMAA did not
provide them an express right to judicial review either. See Ark. Dairy, 573 F.3d at 822. While
our Circuit Court rejected this argument, stating that "this approach reads Block too broadly," it
28
expressly contemplate participation by even the recipients of Section 1861 production
orders, let alone third parties. Rather, as originally enacted, FISA was characterized by a
secret, ex parte process in which only the government participated. Period. See 50
U.S.C. § 1805(a), (e)(4); In re Sealed Case, 310 F.3d 717, 719 (FISA Ct. Rev. 2002)
("[T]he government is the only party to FISA proceedings ...."). In passing the USA
PATRIOT Improvement and Reauthorization Act, however, Congress provided an
avenue for recipients of Section 1861 production orders to participate in litigation before
the FISC and thus playa role in the statutory scheme. See USA PATRIOT Improvement
and Reauthorization Act § 106(f); Kris & Wilson, § 19:7.28 As such, it would not be
prudent to treat Congressional silence regarding third parties as an intent to provide
reasoned that "the Supreme Court [in Block] did not concentrate simply on the presence or
absence of an explicit right of appeal in the AMAA, but instead noted that in the 'complex
scheme' of the AMAA, there was no provision for consumer participation of any kind." Id. In
that particular case, our Circuit Court found that the AMAA did, in fact, contemplate the
participation of milk producers in the regulatory process, and the court relied on this factor, in
part, in holding that producers could bring suit under the APA. Id. at 822-27. Here, by contrast,
the FISA statutory scheme does not contemplate any participation by third parties in the process
of regulating governmental surveillance for foreign intelligence purposes, nor does Section 1861
contemplate the participation of third parties in adjudicating the legality of production orders.
Indeed, only in the last decade has the FISA statutory scheme permitted participation by even
recipients of production orders.
The USA PATRIOT Improvement and Reauthorization Act also added a provision allowing
recipients of National Security Letters ("NSLs") to seek judicial review of those letters. See
USA PATRIOT Improvement and Reauthorization Act § 115. In contrast to the provision ofa
right ofjudicial review to recipients of Section 1861 production orders before the FISC, the act
provided that the recipient of an NSL (under any of the five NSL statutes) "may, in the United
States district court for the district in which that person or entity does business or resides,
petition for an order modifying or setting aside the request." 18 U.S.C. § 3511.
28
29
broader judicial review than that specifically set forth in the statute." Judicial alchemy of
that sort is particularly inappropriate on matters affecting national security.
To be sure, FISA and Section 1861 do implicate the interests of cell phone
subscribers when their service providers are producing metadata about their phone
communications to the Government, as I will discuss below in the context of plaintiffs'
constitutional claims. But the statutory preclusion inquiry "does not only tum on whether
the interests of a particular class ... are implicated." Block, 467 U.S. at 347. "Rather,
the preclusion issue turns ultimately on whether Congress intended for that class to be
relied upon to challenge agency disregard of the law." Id. Here, the detailed procedures
set out in the statute for judicial review of Section 1861 production orders, at the behest
of recipients of those orders, indicate that, for better or worse, Congress did not intend for
29 Indeed, it would be curious to reach the opposite conclusion-that even though the statute
expressly permits only recipients to challenge Section 1861 production orders in a specific forum
(after Congress rejected an amendment that proposed to allow them to bring their challenges in
federal district court at the same time it decided to allow recipients ofNSLs to do exactly that),
and even though Congress considered but declined to extend that right ofjudicial review to third
parties, see Govt. 's Suppl, Br. at 3, these plaintiffs can nonetheless, in effect, challenge those
orders in district court by bringing a claim under the APA challenging government agency
conduct. In Block, when finding that the AMAA statute precluded claims by milk consumers,
the Supreme Court noted that permitting consumers to seek judicial review of milk orders
directly when the statute required milk handlers to first exhaust administrative remedies, "would
severely disrupt this complex and delicate administrative scheme." Block, 467 U.S. at 348; cf
Sackett v. EPA, 132 S. Ct. 1367,1374 (2012) ("Where a statute provides that particular agency
action is reviewable at the instance of one party, who must first exhaust administrative remedies,
the inference that it is not reviewable at the instance of other parties, who are not subject to the
administrative process, is strong."). Permitting third parties to come into federal district court to
challenge the legality of Section 1861 production orders, or government agency action conducted
pursuant thereto, under the banner of an APA claim would likewise frustrate the statutory
scheme here, where Congress in FISA has set out a specific process for judicial review of those
orders by the FISC.
30
third parties, such as plaintiff phone subscribers here, to challenge the Government's
·
. h th e statute. 30
comp1lance
WIt
II.
Constitutional Claims
A.
Jurisdiction
Finding that I lack jurisdiction to review plaintiffs' APA claim does not, however,
end the Court's jurisdictional inquiry. Plaintiffs have raised several constitutional
challenges to the Government's conduct at issue here. And while the Government has
30 Finally, against this backdrop ofFISA's structure, purpose, and history, I find the
Government's second preclusion argument-that 18 U.S.C. § 2712 also shows Congress's intent
to preclude an APA statutory claim under Section 1861, Govt.'s Opp'n at 30-more persuasive
than it otherwise appears when reading that statute alone. Section 2712, which Congress added
to the Stored Communications Act in 2001, provides that "[a]ny person who is aggrieved by any
willful violation of [the Stored Communications Act] or of [the Wiretap Act] or of sections
106(a) [50 U.S.C. § 1806(a)], 305(a) [50 U.S.C. § 1825(a)], or 405(a) [50 U.S.C. § 1845(a)] of
the Foreign Intelligence Surveillance Act ... may commence an action in United States District
Court against the United States to recover money damages." The Government argues that
because this statute creates a money damages action against the United States for violations of
three specific provisions of FISA, it impliedly precludes an action for injunctive relief regarding
any provision ofFISA, such as Section 1861. See Govt.'s Opp'n at 30-31; Govt.'s Suppl. Br. at
3-4. According to the Government, "Section 2712 thus deals with claims for misuses of
information obtained under FISA in great detail, including the intended remedy," and therefore
plaintiffs here cannot rely on Section 1861 "to bring a claim for violation of FISA' s terms that
Congress did not provide for under 18 U.S.C. § 2712." Govt.'s Opp'n at 31. Indeed, Judge
White in the Northern District of California came to this same conclusion, holding that Section
2712, "by allowing suits against the United States only for damages based on three provisions of
[FISA], impliedly bans suits against the United States that seek injunctive relief under any
provision ofFISA." Jewel v. Nat 'I Sec. Agency, --- F. Supp. 2d ---, 2013 WL 3829405, at *12
(N.D. Cal. July 23, 2013). Of course, Section 2712 also expressly provides that "[a]ny action
against the United States under this subsection shall be the exclusive remedy against the United
States for any claims within the purview ofthis section," 18 U.S.C. § 2712(d) (emphasis added),
and therefore it might be argued that Section 2712's provision of a remedy should not be read
more broadly to have any preclusive impact on violations of other provisions of FISA, such as
Section 1861, not "within the purview" of that section. But when read in conjunction with FISA
overall, and in light of the secret nature of FISA proceedings designed to advance intelligencegathering for national security purposes, I agree with the Government that Section 2712's
provision of a certain remedy, money damages, for violations of only certain provisions ofFISA
should be read to further show Congress's intent to preclude judicial review of APA claims for
injunctive relief by third parties regarding any provision of FISA, including Section 1861.
31
conceded this Court's authority to review these constitutional claims, Govt. 's Suppl. Br.
at 4, I must nonetheless independently evaluate my jurisdictional authority, see
Henderson ex ref. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011) ("[F]ederal courts
have an independent obligation to ensure that they do not exceed the scope of their
jurisdiction, and therefore they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.").
Because Article III courts were created, in part, to deal with allegations of
constitutional violations, U.S. CONST. art. III, § 2, the jurisdictional inquiry here turns, in
the final analysis, on whether Congress intended to preclude judicial review of
constitutional claims related to FISC orders by any non-FISC courts. Not surprisingly,
the Supreme Court has addressed Congressional efforts to limit constitutional review by
Article III courts. In Webster v. Doe, 486 U.S. 592 (1988), the Court stated emphatically
that "where Congress intends to preclude judicial review of constitutional claims its
intent to do so must be clear." Id. at 603. Such a "heightened showing" is required "in
part to avoid the' serious constitutional question' that would arise if a federal statute were
construed to deny any judicial forum for a colorable constitutional claim." Id. (holding
that although a former CIA employee who alleged that he was fired because he was a
homosexual, in violation of the APA and the Constitution, could not obtain judicial
review under the APA because such decisions were committed to the agency's discretion
by law, 5 U.S.C. § 70 1(a)(2), under a provision of the National Security Act of 1947, a
court could nonetheless review the plaintiffs constitutional claims based on the same
allegation).
32
As discussed in Part I above, FISA does not include an express right ofjudicial
review for third party legal challenges to Section 1861 orders-whether constitutional or
otherwise, whether in the FISC or elsewhere. But neither does FISA contain any
language expressly barring all judicial review of third party claims regarding Section
1861 orders-a necessary condition to even raise the question of whether FISA' s
statutory scheme ofjudicial review provides the exclusive means of review for
constitutional claims relating to Section 1861 production orders. See Elgin v. Dep 't ofthe
Treasury, 132 S. Ct. 2126, 2132 (2012) ("[A] necessary predicate to the application of
Webster's heightened standard [is] a statute that purports to 'deny any judicial forum for
a colorable constitutional claim. '"); see also McBryde v. Comm. to Review Circuit
Council Conduct & Disability Orders ofthe Judicial Conference of us., 264 F.3d 52, 59
(D.C. Cir. 2001) (the D.C. Circuit "find]s] preclusion of review for both as applied and
facial constitutional challenges only if the evidence of congressional intent to preclude is
'clear and convincing' .... [and] we have not regarded broad and seemingly
comprehensive statutory language as supplying the necessary clarity to bar as applied
constitutional claims"); Ungar v. Smith, 667 F.2d 188, 193-96 (D.C. Cir. 1981) (holding
that statutory language in 22 U.S.C. § 16310(c) stating administrative determinations
"shall be final and shall not be subject to review by any court" did not bar courts from
hearing constitutional claims relating to the statute, absent a clear expression of
Congress's intent to bar such claims in the statute's legislative history). Because FISA
contains no "broad and seemingly comprehensive statutory language" expressly barring
judicial review of any claims under Section 1861, let alone any language directed at
33
constitutional claims in particular, Congress has not demonstrated an intent to preclude
constitutional claims sufficient to even trigger the Webster heightened standard in the
first place, let alone "clear" enough to meet it.
This, of course, makes good sense. The presumption that judicial review of
constitutional claims is available in federal district courts is a strong one, Webster, 486
U.S. at 603, and if the Webster heightened standard is to mean anything, it is that
Congress's intent to preclude review of constitutional claims must be much clearer than
that sufficient to show implied preclusion of statutory claims. Where, as here, core
individual constitutional rights are implicated by Government action, Congress should
not be able to cut off a citizen's right to judicial review of that Government action simply
because it intended for the conduct to remain secret by operation of the design of its
statutory scheme. While Congress has great latitude to create statutory schemes like
FISA, it may not hang a cloak of secrecy over the Constitution.
B.
Preliminary Injunction
When ruling on a motion for preliminary injunction, a court must consider
"whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the
plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction
would substantially injure other interested parties; and (4) the grant of an injunction
would further the public interest." Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891,
34
893 (D.C. Cir. 2010) (internal quotation marks omittedr." I will address each of these
factors in tum.
1.
Plaintiffs Have Shown a Substantial Likelihood ofSuccess on the
Merits.
In addressing plaintiffs' likelihood of success on the merits of their constitutional
claims, I will focus on their Fourth Amendment arguments, which I find to be the most
likely to succeed." First, however, I must address plaintiffs' standing to challenge the
various aspects of the Bulk Telephony Metadata Program. See Jack's Canoes & Kayaks,
LLC v. Nat 'I Park Serv., 933 F. Supp. 2d 58, 76 (D.D.C. 2013) ("The first component of
the likelihood of success on the merits prong usually examines whether the plaintiffs
have standing in a given case." (internal quotation marks omitted)).
a.
Plaintiffs Have Standing to Challenge Bulk Telephony
Metadata Collection and Analysis.
"To establish Article III standing, an injury must be concrete, particularized, and
actual or imminent; fairly traceable to the challenged action; and redressable by a
favorable ruling." Clapper v. Amnesty Int'! USA, 133 S. Ct. 1138, 1147 (2013) (internal
Our Circuit has traditionally applied a "sliding scale" approach to these four factors. Davis v.
Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). In other words, "a strong
showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius,
644 F.3d 388, 392 (D.C. Cir. 2011). Following the Supreme Court's decision in Winter v.
NRDC, Inc., 555 U.S. 7 (2008), however, our Circuit "has suggested, without deciding, that
Winter should be read to abandon the sliding-scale analysis in favor of a 'more demanding
burden' requiring Plaintiffs to independently demonstrate both a likelihood of success on the
merits and irreparable harm." Smith v. Henderson, --- F. Supp. 2d ---, 2013 WL 2099804, at *4
(D.D.C. May 15,2013) (citing Sherley, 644 F.3d at 392). Regardless of how Winter is read, the
Court's analysis here is unaffected because I conclude that plaintiffs have made a sufficient
showing of both a likelihood of success on the merits and irreparable harm.
31
32
See supra note 7.
35
quotation marks omitted). In Clapper, the Supreme Court held that plaintiffs lacked
standing to challenge NSA surveillance under FISA because their "highly speculative
fear" that they would be targeted by surveillance relied on a "speculative chain of
possibilities" insufficient to demonstrate a "certainly impending" injury. ld. at 1147-50.
Moreover, the Clapper plaintiffs' "self-inflicted injuries" (Le., the costs and burdens of
avoiding the feared surveillance) could not be traced to any provable government
activity. ld. at 1150-53. 33 That is not the case here.
The NSA's Bulk Telephony Metadata Program involves two potential searches:
(1) the bulk collection of metadata and (2) the analysis of that data through the NSA's
querying process. For the following reasons, I have concluded that the plaintiffs have
standing to challenge both. First, as to the collection, the Supreme Court decided
Clapper just months before the June 2013 news reports revealed the existence and scope
of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only
speculate as to whether they would be surveilled at all, plaintiffs in this case can point to
strong evidence that, as Verizon customers, their telephony metadata has been collected
for the last seven years (and stored for the last five) and will continue to be collected
I note in passing one significant difference between the metadata collection at issue in this case
and the electronic surveillance at issue in Clapper. As the Court noted in Clapper, "if the
Government intends to use or disclose information obtained or derived from a [50 U.S.C.] §
1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its
intent, and the affected person may challenge the lawfulness of the acquisition." 133 S. Ct. at
1154 (citing 50 U.S.C. §§ 1806(c), 1806(e), 1881e(a». Sections 1806(c) and (e) and 1881e(a),
however, apply only to "information obtained or derived from an electronic surveillance"
authorized by specific statutes; they do not apply to business records collected under Section
1861. Nor does it appear that any other statute requires the Government to notify a criminal
defendant if it intends to use evidence derived from an analysis of the bulk telephony metadata
collection.
33
36
barring judicial or legislative intervention. Compare id. at 1148 ("[R]espondents have no
actual knowledge of the Government's § 1881a targeting practices."), with PIs.' Mem. at
1,2 n.2, 7-8 (citing FISC orders and statements from Director of National Intelligence);
Suppl. Klayman Aff.
~
3 (attesting to status as Verizon customer); Strange Aff.
~
2
(same). In addition, the Government has declassified and authenticated an April 25, 2013
FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected
telephony metadata from Verizon. See Apr. 25, 2013 Secondary Order.
Straining mightily to find a reason that plaintiffs nonetheless lack standing to
challenge the metadata collection, the Government argues that Judge Vinson's order
names only Verizon Business Network Services ("VBNS") as the recipient of the order,
whereas plaintiffs claim to be Verizon Wireless subscribers. See Govt.'s Opp'n at 21 &
n.9. The Government obviously wants me to infer that the NSA may not have collected
records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T
and Sprint). Curiously, the Government makes this argument at the same time it is
describing in its pleadings a bulk metadata collection program that can function only
because it "creates an historical repository that permits retrospective analysis of terroristrelated communications across multiple telecommunications networks, and that can be
immediately accessed as new terrorist-associated telephone identifiers come to light."
Govt.'s Opp'n at 12 (emphasis added); see also id. at 65 (court orders to segregate and
destroy individual litigants' records "could ultimately have a degrading effect on the
utility of the program"); Shea Decl.
~
65 (removing plaintiffs' phone numbers "could
undermine the results of any authorized query of a phone number that based on RAS is
37
associated with one of the identified foreign terrorist organizations by eliminating, or
cutting off potential call chains").
Put simply, the Government wants it both ways. Virtually all of the Government's
briefs and arguments to this Court explain how the Government has acted in good faith to
create a comprehensive metadata database that serves as a potentially valuable tool in
combating terrorism-in which case, the NSA must have collected metadata from
Verizon Wireless, the single largest wireless carrier in the United States, as well as
AT&T and Sprint, the second and third-largest carriers. See Grading the top
us.
carriers in the third quarter 0/2013, FIERCEWIRELESS.COM (Nov. 18,2013);34
Marguerite Reardon, Competitive wireless carriers take on AT&T and Verizon,
CNET.cOM (Sept. 10,2012).35 Yet in one footnote, the Government asks me to find that
plaintiffs lack standing based on the theoretical possibility that the NSA has collected a
universe of metadata so incomplete that the program could not possibly serve its putative
function." Candor of this type defies common sense and does not exactly inspire
confidence!
Likewise, I find that plaintiffs also have standing to challenge the NSA's querying
procedures, though not for the reasons they pressed at the preliminary injunction hearing.
34 http://www.fiercewireless.com/special-reports/grading-top-us-carriers-third-quarter-2013.
35 http://news.cnet.com/8301-1 035_3-57505803-94/competitive-wireless-carriers-take-on-at-tand-verizon/.
36 To draw an analogy, if the NSA's program operates the way the Government suggests it does,
then omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting
John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn't
make any sense, and I cannot believe the Government would create, maintain, and so ardently
defend such a system.
38
At oral argument, I specifically asked Mr. Klayman whether plaintiffs had any "basis to
believe that the NSA has done any queries" involving their phone numbers. Transcript of
Nov. 18,2013 Preliminary Injunction Hearing at 22, Klayman I & Klayman II ("P.I. Hr'g
Tr.") [Dkt. # 41]. Mr. Klayman responded: "I think they are messing with me." Id. He
then went on to explain that he and his clients had received inexplicable text messages
and emails.nottomentionadiskcontainingaspywareprogram.Id. ; see also Strange
Aff. ~~ 12-17. Unfortunately for plaintiffs, none of these unusual occurrences or
instances of being "messed with" have anything to do with the question of whether the
NSA has ever queried or analyzed their telephony metadata, so they do not confer
standing on plaintiffs.
The Government, however, describes the advantages of bulk collection in such a
way as to convince me that plaintiffs' metadata-indeed everyone's metadata-is
analyzed, manually or automatically," whenever the Government runs a query using as
the "seed" a phone number or identifier associated with a phone for which the NSA has
not collected metadata (e.g., phones operating through foreign phone companies).
According to the declaration submitted by NSA Director of Signals Intelligence
Directorate ("SID") Teresa H. Shea, the data collected as part of the Bulk Telephony
Metadata Program-had it been in place at that time-would have allowed the NSA to
determine that a September 11 hijacker living in the United States had contacted a known
al Qaeda safe house in Yemen. Shea Decl.
~
11. Presumably, the NSA is not collecting
See Oct. 11,2013 Primary order at 11 ("Queries ofthe BR metadata using RAS-approved
selection terms may occur either by manual analyst query or through the automated query
process described below."); see also supra note 22.
37
39
metadata from whatever Yemeni telephone company was servicing that safehouse, which
means that the metadata program remedies the investigative problem in Director Shea's
example only
if the metadata can be queried to determine which callers in the United
States had ever contacted or been contacted by the target Yemeni safehouse number. See
also Shea Decl,
~
44 (the metadata collection allows NSA analysts to, among other
things, "detect foreign identifiers associated with a foreign terrorist organization calling
into the U.S. and discover which domestic identifiers are in contact with the foreign
identifiers."). When the NSA runs such a query, its system must necessarily analyze
metadata for every phone number in the database by comparing the foreign target number
against all of the stored call records to determine which U.S. phones, if any, have
interacted with the target number." Moreover, unlike a DNA or fingerprint databasewhich contains only a single "snapshot" record of each person therein-the NSA's
database is updated every single day with new information about each phone number.
Compare Johnson v. Quander, 440 F.3d 489,498-99 (D.C. Cir. 2006), with Govt.'s
Opp'n at 8-9. Because the Government can use daily metadata collection to engage in
38 The difference between querying a phone number belonging to a domestic Verizon subscriber
(for which metadata has been collected) and querying a foreign number (for which metadata has
not been collected) might be analogized as follows. A query that begins with a domestic U.S.
phone number is like entering a library and looking to find all of the sources that are cited in
Battle Cry ofFreedom by James M. McPherson (Oxford University Press 1988). You find that
specific book, open it, and there they are. "Hop one" is complete. Then, you want to find all the
sources cited within each of those sources ("hop two"), and so on. At the end ofa very long day,
you have looked only at books, articles, etc. that were linked to Battle Cry ofFreedom.
Querying a foreign phone number is like entering a library and trying to find every book
that cites Battle Cry ofFreedom as a source. It might be referenced in a thousand books. It
might be in just ten. It could be in zero. The only way to know is to check every book. At the
end of a very long month, you are left with the "hop one" results (those books that cite Battle Cry
ofFreedom), but to get there, you had to open every book in the library.
40
"repetitive, surreptitious surveillance of a citizen's private goings on," the NSA database
"implicates the Fourth Amendment each time a government official monitors it.,,39
Johnson, 440 F.3d at 498-99 (distinguishing DNA profile in a law enforcement
database-which is not searched each time database is accessed-from a "constantly
updat[ing]" video feed, and warning that "future technological advances in DNA testing .
. . may empower the government to conduct wide-ranging 'DNA dragnets' that raise
justifiable citations to George Orwell"). And the NSA can access its database whenever
it wants, repeatedly querying any seed approved in the last 180 days (for terms believed
to be used by U.S. persons) or year (for all other terms). See Oct. 11,2013 Primary
Order at 10.
40
39 It is irrelevant for Fourth Amendment purposes that the NSA might sometimes use automated
analytical software. Cf Smith, 442 U.S. at 744-45 ("We are not inclined to hold that a different
constitutional result is required because the telephone company has decided to automate.").
The Government contends that "the mere collection of Plaintiffs' telephony metadata ...
without review of the data pursuant to a query" cannot be considered a search "because the
Government's acquisition of an item without examining its contents 'does not compromise the
interest in preserving the privacy of its contents.'" Govt.'s Opp'n at 49 n.33 (quoting Horton v.
California, 496 U.S. 128,141 n.11 (1990); citing United States v. Van Leeuwen, 397 U.S. 249,
252-53 (1970)). The cases on which the Government relies are inapposite. Horton involved the
seizure of tangible items under the plain view doctrine. 496 U.S. at 141-42. The Government
quotes dicta about whether the seizure of a physical container constitutes a search of the
container's contents. Id. at 141 nJI. Likewise, the Court in Van Leeuwen addressed whether
the detention of a package constituted an unreasonable seizure. 397 U.S. at 252-53.
40
In the case of the bulk telephony metadata collection, there is no analogous "container"
that remains sealed; rather, all of the metadata is handled by the Government, at least to the
degree needed to integrate the metadata into the NSA's database. See Shea Decl. ~~ 17, 60
(government may access metadata for purpose of "rendering [it] useable to query" because "each
[telecom] provider may not maintain records in a format that is subject to a standardized query").
Thus, unlike the contents of the container described in Horton, telephony metadata is not kept in
an unmolested, opaque package that obscures it from the Government's view.
41
Accordingly, plaintiffs meet the standing requirements set forth in Clapper, as
they can demonstrate that the NSA has collected and analyzed their telephony metadata
and will continue to operate the program consistent with FISC opinions and orders.
Whether doing so violates plaintiffs' Fourth Amendment rights is, of course, a separate
question and the subject of the next section, which addresses the merits of their claims.
See United States v. Lawson, 410 F.3d 735, 740 n.4 (D.C. Cir. 2005) ("[A]lthough courts
sometimes refer to the reasonable expectation of privacy issue as 'standing' to contest a
search, the question 'is more properly placed within the purview of substantive Fourth
Amendment law than within that of standing. '" (quoting Minnesota v. Carter, 525 U.S.
83, 88 (1998)).
b.
Plaintiffs Are Likely to Succeed on the Merits of Their
Fourth Amendment Claim.
The Fourth Amendment protects "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." U.S.
CONST. amend IV. That right "shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized." Id. A Fourth Amendment
"search" occurs either when "the Government obtains information by physically
intruding on a constitutionally protected area," United States v. Jones, 132 S. Ct. 945, 950
n.3 (2012), or when "the government violates a subjective expectation of privacy that
society recognizes as reasonable," Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing
42
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). This case
obviously does not involve a physical intrusion, and plaintiffs do not claim otherwise. 4 !
The threshold issue that I must address, then, is whether plaintiffs have a
reasonable expectation of privacy that is violated when the Government indiscriminately
collects their telephony metadata along with the metadata of hundreds of millions of
other citizens without any particularized suspicion of wrongdoing, retains all of that
metadata for five years, and then queries, analyzes, and investigates that data without
prior judicial approval of the investigative targets. If they do-and a Fourth Amendment
search has thus occurred-then the next step of the analysis will be to determine whether
such a search is "reasonable." See id. at 31 (whether a search has occurred is an
"antecedent question" to whether a search was reasonablcj.Y
i,
The Collection and Analysis of Telephony
Metadata Constitutes a Search.
The analysis of this threshold issue of the expectation of privacy must start with
the Supreme Court's landmark opinion in Smith v. Maryland, 442 U.S. 735 (1979), which
the FISC has said "squarely control[s]" when it comes to "[t]he production of telephone
service provider metadata." Am. Mem. Op., In re Application ofthe [FBI] for an Order
"A 'seizure' of property occurs when there is some meaningful interference with an
individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113
(1984). Plaintiffs have not offered any theory as to how they would have a possessory interest in
their phone data held by Verizon, and I am aware of none.
41
While it is true "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment
implications of emerging technology before its role in society has become clear," City ofOntario
v. Quon, 130 S. Ct. 2619, 2629 (2010), phone call and text messaging technology is not
"emerging," nor is "its role in society" unclear. I therefore believe that it is appropriate and
necessary to elaborate on the Fourth Amendment implications of the NSA's metadata collection
program.
42
43
Requiring the Production ofTangible Thingsfrom [REDACTED}, No. BR 13-109 at 6-9
(FISC Aug. 29, 2013) (attached as Ex. A to Gilligan Decl.) [Dkt. # 25-2]. In Smith,
police were investigating a robbery victim's reports that she had received threatening and
obscene phone calls from someone claiming to be the robber. Id. at 737. Without
obtaining a warrant or court order, police installed a pen register, which revealed that a
telephone in Smith's home had been used to call the victim on one occasion.t' Id. The
Supreme Court held that Smith had no reasonable expectation of privacy in the numbers
dialed from his phone because he voluntarily transmitted them to his phone company, and
because it is generally known that phone companies keep such information in their
business records. Id. at 742-44. The main thrust of the Government's argument here is
that under Smith, no one has an expectation of privacy, let alone a reasonable one, in the
telephony metadata that telecom companies hold as business records; therefore, the Bulk
Telephony Metadata Program is not a search. Govt.'s Opp'n at 45-50. I disagree.
The question before me is not the same question that the Supreme Court
confronted in Smith. To say the least, "whether the installation and use of a pen register
constitutes a 'search' within the meaning of the Fourth Amendment," id. at 736-under
the circumstances addressed and contemplated in that case-is a far cry from the issue in
this case.
A "pen register" is "a device or process which records or decodes dialing, routing, addressing,
or signaling information transmitted by an instrument or facility from which a wire or electronic
communication is transmitted" (i.e., it records limited data on outgoing calls). 18 U.S.C. §
3127(3).
43
44
Indeed, the question in this case can more properly be styled as follows: When do
present-day circumstances-the evolutions in the Government's surveillance capabilities,
citizens' phone habits, and the relationship between the NSA and telecom companiesbecome so thoroughly unlike those considered by the Supreme Court thirty-four years
ago that a precedent like Smith simply does not apply? The answer, unfortunately for the
Government, is now.
In United States v. Jones, 132 S. Ct. 945 (2012), five justices found that law
enforcement's use of a GPS device to track a vehicle's movements for nearly a month
violated Jones's reasonable expectation of privacy. See id. at 955-56 (Sotomayor, L,
concurring); id. at 964 (Alito, J., concurring). Significantly, the justices did so without
questioning the validity of the Court's earlier decision in United States v. Knotts, 460
U.S. 276 (1983), that use ofa tracking beeper does not constitute a search because "[a]
person travelling in an automobile on public thoroughfares has no reasonable expectation
of privacy in his movements from one place to another.T'" Id. at 281. Instead, they
emphasized the many significant ways in which the short-range, short-term tracking
device used in Knotts differed from the constant month-long surveillance achieved with
the GPS device attached to Jones's car. See Jones, 132 S. Ct. at 956 n. * (Sotomayor, J.,
concurring) (Knotts "does not foreclose the conclusion that GPS monitoring, in the
44 In Jones, the Government relied heavily on Knotts (and Smith) as support for the argument that
Jones had no expectation of privacy in his movements on the roads because he voluntarily
disclosed them to the public. See generally Brief for Petitioner, United States v. Jones, 132 S.
Ct. 945 (2012) (No. 10-1259),2011 WL 3561881; Reply Brief for Petitioner, United States v.
Jones, 132 S. Ct. 945 (2012) (No. 10-1259),2011 WL 5094951. Five justices found that
argument unconvincing.
45
absence ofa physical intrusion, is a Fourth Amendment search"); id. at 964 (Alito, J.,
concurring) ("[R]e1atively short-term monitoring of a person's movements on public
streets accords with expectations of privacy that our society has recognized as reasonable.
But the use of longer term GPS monitoring in investigations of most offenses impinges
on expectations of privacy." (citation omitted)); see also United States v. Maynard, 615
F.3d 544,557 (D.C. Cir. 2010), aff'd sub nom. Jones, 132 S. Ct. 945 ("Knotts held only
that '[a] person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another,' not that such a
person has no reasonable expectation of privacy in his movements whatsoever, world
without end, as the Government would have it." (citation omitted; quoting Knotts, 460
U.S. at 281)).45
Just as the Court in Knotts did not address the kind of surveillance used to track
Jones, the Court in Smith was not confronted with the NSA's Bulk Telephony Metadata
Program." Nor could the Court in 1979 have ever imagined how the citizens of 20 13
45 Lower courts, too, have recognized that the Supreme Court's Fourth Amendment decisions
cannot be read too broadly. See, e.g., United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th
Cir. 1987) ("It does not follow that [California v. Ciraolo, 476 U.S. 207 (1986), which held that
police did not violate a reasonable expectation of privacy when they engaged in a warrantless
aerial observation of marijuana plants growing on curtilage of a home using only the naked eye
from a height of 1,000 feet,] authorizes any type of surveillance whatever just because one type
of minimally-intrusive aerial observation is possible.").
True, the Court in Knotts explicitly "reserved the question whether 'different constitutional
principles may be applicable' to 'dragnet-type law enforcement practices' of the type that GPS
tracking made possible" in Jones. Jones, 132 S. Ct. at 952 n.6 (quoting Knotts, 460 U.S. at 284);
see also id. at 956, n. * (Sotomayor, J., concurring). That the Court in Smith did not explicitly
hold open the question of whether an exponentially broader, high-tech, years-long bulk
telephony metadata collection program would infringe on reasonable expectations of privacy
does not mean that the Court's holding necessarily extends so far as to answer that novel
question. The Supreme Court itself has recognized that prior Fourth Amendment precedents and
46
46
would interact with their phones. For the many reasons discussed below, I am convinced
that the surveillance program now before me is so different from a simple pen register
that Smith is of little value in assessing whether the Bulk Telephony Metadata Program
constitutes a Fourth Amendment search. To the contrary, for the following reasons, I
believe that bulk telephony metadata collection and analysis almost certainly does violate
a reasonable expectation of privacy.
First, the pen register in Smith was operational for only a matter of days between
March 6,1976 and March 19, 1976, and there is no indication from the Court's opinion
that it expected the Government to retain those limited phone records once the case was
over. See 442 U.S. at 737. In his affidavit, Acting Assistant Director of the FBI Robert J.
Holley himself noted that "[p ]en-register and trap-and-trace (PRITT) devices provide no
historical contact information, only a record of contacts with the target occurring after the
devices have been installed." Holley Decl.
~
9. This short-term, forward-looking (as
opposed to historical), and highly-limited data collection is what the Supreme Court was
assessing in Smith. The NSA telephony metadata program, on the other hand, involves
the creation and maintenance of a historical database containing five years' worth of data.
And I might add, there is the very real prospect that the program will go on for as long as
America is combatting terrorism, which realistically could be forever!
doctrines do not always control in cases involving unique factual circumstances created by
evolving technology. See, e.g., Kyllo, 533 U.S. at 34 ("To withdraw protection of this minimum
expectation [of privacy in the home] would be to permit police technology to erode the privacy
guaranteed by the Fourth Amendment."). If this isn't such a case, then what is?
47
Second, the relationship between the police and the phone company in Smith is
nothing compared to the relationship that has apparently evolved over the last seven years
between the Government and telecom companies. Compare Smith, 442 U.S. at 737
("[T]he telephone company, at police request, installed a pen register at its central offices
to record the numbers dialed from the telephone at petitioner's home."), with Govt.ts
Opp'n at 8-9 ("Under this program, ... certain telecommunications service providers []
produce to the NSA on a daily basis electronic copies of call detail records, or telephony
metadata .... The FISC first authorized the program in May 2006, and since then has
renewed the program thirty-five times ...." (emphases added; citation and internal
quotation marks omitted». The Supreme Court itself has long-recognized a meaningful
difference between cases in which a third party collects information and then turns it over
to law enforcement, see, e.g., Smith, 442 U.S. 735; United States v. Miller, 425 U.S. 435
(1976), and cases in which the government and the third party create a formalized policy
under which the service provider collects information for law enforcement purposes, see
Ferguson v. Charleston, 532 U.S. 67 (200 I), with the latter raising Fourth Amendment
concerns. In Smith, the Court considered a one-time, targeted request for data regarding
an individual suspect in a criminal investigation, see Smith, 442 U.S. at 737, which in no
way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that
the NSA now receives as part of its Bulk Telephony Metadata Program. It's one thing to
say that people expect phone companies to occasionally provide information to law
enforcement; it is quite another to suggest that our citizens expect all phone companies to
operate what is effectively a joint intelligence-gathering operation with the Government.
48
Cf
us. Dep 't ofJustice v. Reporters Comm. for Freedom ofthe Press, 489 U.S. 749,
764 (1989) ("Plainly there is a vast difference between the public records that might be
found after a diligent search of [various third parties' records] and a computerized
summary located in a single clearinghouse of information.")."
Third, the almost-Orwellian technology that enables the Government to store and
analyze the phone metadata of every telephone user in the United States is unlike
anything that could have been conceived in 1979. In Smith, the Supreme Court was
actually considering whether local police could collect one person's phone records for
calls made after the pen register was installed and for the limited purpose of a small-scale
investigation of harassing phone calls. See Smith, 442 U.S. at 737. The notion that the
Government could collect similar data on hundreds of millions of people and retain that
data for a five-year period, updating it with new data every day in perpetuity, was at best,
in 1979, the stuff of science fiction. By comparison, the Government has at its disposal
today the most advanced twenty-first century tools, allowing it to "store such records and
efficiently mine them for information years into the future." Jones, 132 S. Ct. at 956
(Sotomayor, J., concurring). And these technologies are "cheap in comparison to
conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby
47 When an individual makes his property accessible to third parties, he may still retain some
expectation of privacy based on his understanding of how third parties typically handle that
property. See Bond v. United States, 529 U.S. 334, 338-39 (2000) ("[A] bus passenger clearly
expects that his bag may be handled. He does not expect that other passengers or bus employees
will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the
agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag
violated the Fourth Amendment.").
49
"evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited
police ... resources and community hostility." Id. 48
Finally, and most importantly, not only is the Government's ability to collect,
store, and analyze phone data greater now than it was in 1979, but the nature and quantity
of the information contained in people's telephony metadata is much greater, as well.
According to the 1979 U.S. Census, in that year, 71,958,000 homes had telephones
available, while 6,614,000 did not. U.S. DEP'T OF COMMERCE & U.S. DEP'T OF Hous. &
URBAN DEV., ANNUAL HOUSING SURVEY: 1979, at 4 (1981) (Table A-I: Characteristics
of the Housing Inventory: 1979 and 1970). In December 2012, there were a whopping
326,475,248 mobile subscriber connections in the United States, of which approximately
304 million were for phones and twenty-two million were for computers, tablets, and
modems.l" CTIA - The Wireless Ass'n ("CTIA"), Wireless Industry Survey ResultsDecember 1985 to December 2012, at 2,6 (2013) ("CTIA Survey Results,,);50 see also
Sixteenth Report, In re Implementation a/Section 6002(b) a/Omnibus Budget
Reconciliation Act, WT Dkt. No. 11-186, at 9 (F.C.C. Mar. 21, 2013) ('"[A]t the end of
2011 there were 298.3 million subscribers to mobile telephone, or voice, service, up
The unprecedented scope and technological sophistication of the NSA's program distinguish it
not only from the Smith pen register, but also from metadata collections performed as part of
routine criminal investigations. To be clear, this opinion is focusing only on the program before
me and not any other law enforcement practices. Like the concurring justices in Jones, I cannot
"identify with precision the point at which" bulk metadata collection becomes a search, but there
is a substantial likelihood that the line was crossed under the circumstances presented in this
case. See Jones, 132 S. Ct. at 964 (Alito, 1., concurring).
48
The global total is 6.6 billion. ERICSSON, Mobility Report on the Pulse ofNetworked Society,
at 4 (Nov. 2013), available at http://www.ericsson.com/res/docs/2013/ericsson-mobility-reportnovember-20 13.pdf.
49
50
http://files.ctia.org/pdf/CTIA_Survey_YE_2012_Graphics-FINAL.pdf.
50
nearly 4.6 percent from 285.1 million at the end of2010."). The number of mobile
subscribers in 2013 is more than 3,000 times greater than the 91,600 subscriber
connections in 1984, INDUS. ANALYSIS DIY., FED. COMMC'NS COMM'N, TRENDS IN
TELEPHONE SERVICE 8 (1998), and more than triple the 97,035,925 subscribers in June
2000, CTI Survey Results, supra, at 4. 51 It is now safe to assume that the vast majority of
people reading this opinion have at least one cell phone within arm's reach (in addition to
other mobile devices). Joanna Brenner, Pew Internet: Mobile (Sept. 18,2013) (91% of
American adults have a cell phone, 95-97% of adults age 18 to 49);52 CTIA, Wireless
Quick Facts (last visited Dec. 10,2013) ("CTIA Quick Facts") (wireless penetration-
the number of active wireless units divided by total U.S. and territorial population-was
102.2% as of December 2012).53 In fact, some undoubtedly will be reading this opinion
on their cell phones. Maeve Duggan, Cell Phone Activities 2013 (Sept. 19,2013) (60%
of cell phone owners use them to access internet)." Cell phones have also morphed into
multi-purpose devices. They are now maps and music players. Id. (49% of cell phone
owners use their phones to get directions and 48% to listen to music). They are cameras.
Keith L. Alexander, Camera phones become courthouse safety issue, WASH. POST, Apr.
22, 2013, at BO 1. They are even lighters that people hold up at rock concerts. Andy
Mobile phones are rapidly replacing traditionallandlines, with 38.2% of households going
"wireless-only" in 2012. CTIA, Wireless Quick Facts, http://www.ctia.org/your-wirelesslifelhow-wireless-works/wireless-quick-facts (last visited Dec. 10,2013); see also Jeffrey
Sparshott, More People Say Goodbye to Landlines, WALL ST. J., Sept. 6,2013, at AS.
51
52 http://pewintemet.orgiCommentary/2012/February/Pew-Intemet-Mobile.aspx .
53 http://www.ctia.org/your-wireless-life/how-wireless-works/wireless-quick-facts.
54 http://pewintemet.org/Reports/2013/Cell-Activities/Main-Findings.aspx.
51
Rathbun, Cool 2 Know - Cell phone virtuosos, NEWSDA Y, Apr. 20, 2005, at B02. They
are ubiquitous as well. Count the phones at the bus stop, in a restaurant, or around the
table at a work meeting or any given occasion. Thirty-four years ago, none of those
phones would have been there." Thirty-four years ago, city streets were lined with pay
phones. Thirty-four years ago, when people wanted to send "text messages," they wrote
letters and attached postage stamps. 56
Admittedly, what metadata is has not changed over time. As in Smith, the types of
information at issue in this case are relatively limited: phone numbers dialed, date, time,
and the like." But the ubiquity of phones has dramatically altered the quantity of
55 Mobile Telephone, BRITANNICA.COM, http://www.britannica.comlEBchecked/topic/1482373/
mobile-telephone?anchor=refl079017 (last visited Dec. 13,2013) ("[A] Japanese system was the
first cellular system to be deployed, in 1979."); Tom Farley, Mobile telephone history,
TELEKTRONIKK, MarchiApril 2005, at 28 ("An 88 cell system in the challenging cityscape of
Tokyo began in December, 1979 .... The first North American commercial system began in
August, 1981 in Mexico City.").
It is not clear from the pleadings whether "telephony metadata" and "comprehensive
communications routing information" includes data relating to text messages. See supra note 16.
If it does, then in 2012, the Government collected an additional six billion communications each
day (69,635 each second). See Infographic -Americans sent and received more than 69,000
texts every second in 2012, CTIA.org (Nov. 25,2013), http://www.ctia.org/resourcelibrary/facts-and-infographics/archive/americans-texts-2o 12-infographic.
56
57 There are, however, a few noteworthy distinctions between the data at issue in Smith and the
metadata that exists nowadays. For instance, the pen register in Smith did not tell the
government whether calls were completed or the duration of any calls, see Smith, 442 U.S. at
741, whereas that information is captured in the NSA's metadata collection.
A much more significant difference is that telephony metadata can reveal the user's
location, see generally New Jersey v. Earls, 70 A.3d 630,637-38 (N.J. 2013), which in 1979
would have been entirely unnecessary given that landline phones are tethered to buildings. The
most recent FISC order explicitly "does not authorize the production of cell site location
information," Oct. 11, 2013 Primary order at 3 n.l, and the Government has publicly disavowed
such collection, see Transcript of June 25, 2013 Newseum Special Program: NSA Surveillance
Leaks: Facts and Fiction, Remarks of Robert Litt, Gen. Counsel, Office of Dir. of Nat' I
Intelligence, available at http://www.dni.gov/index.php/newsroomlspeeches-and-interviews1195speeches-interviews-2013/887-transcript-newseum-special-program-nsa-surveillance-Ieaks-facts52
information that is now available and, more importantly, what that information can tell
the Government about people's lives. See Quon, 130 S. Ct. at 2630 ("Cell phone and text
message communications are so pervasive that some persons may consider them to be
essential means or necessary instruments for self-expression, even self-identification.
That might strengthen the case for an expectation of privacy.... [And] the ubiquity of
those devices has made them generally affordable ...."); cf Jones, 132 S. Ct. at 956
(Sotomayor, J., concurring) (discussing the "substantial quantum of intimate information
about any person" captured by GPS tracking). Put simply, people in 2013 have an
entirely different relationship with phones than they did thirty-four years ago. As a
and-fiction ("I want to make perfectly clear we do not collect cellphone location information
under this program, either GPS information or cell site tower information.").
That said, not all FISC orders have been made public, and I have no idea how location
data has been handled in the past. Plaintiffs do allege that location data has been collected, see
Second Am. CompI. ~ 28; Pis.' Mem. at 10-11, and the Government's brief does not refute that
allegation (though one of its declarations does, see Shea Decl. ~ 15). See also supra note 17.
Moreover, the most recent FISC order states, and defendants concede, that "'telephony metadata'
includes ... trunk identifier[s]," Oct. 11,2013 Primary order at 3 n.l; Govt.'s Opp'n at 9, which
apparently "can reveal where [each] call enter[s] the trunk system" and can be used to "locate a
phone within approximately a square kilometer," Patrick Di Justo, What the N.S.A. Wants to
Know About Your Calls, NEW YORKER (June 7, 2013),
http://www.newyorker.com/online/blogs/elements/20 13/06/what-the-nsa- wants-to-know-aboutyour-phone-calls.html. And "if [the metadata] includes a request for every trunk identifier used
throughout the interaction," that "could allow a phone's movements to be tracked." Id. Recent
news reports, though not confirmed by the Government, cause me to wonder whether the
Government's briefs are entirely forthcoming about the full scope of the Bulk Telephony
Metadata Program. See, e.g., Barton Gellman & Ashkan Soltani, NSA maps targets by their
phones, WASH. POST, Dec. 5,2013, at AOI.
The collection of location data would, of course, raise its own Fourth Amendment
concerns, see, e.g., In re Application ofthe United States for an Order Directing a Provider of
Elec. Commc 'n Servo to Disclose Records to Gov 't, 620 FJd 304, 317 (3d Cir. 2010) ("A cell
phone customer has not 'voluntarily' shared his location information with a cellular provider in
any meaningful way.... [I]t is unlikely that cell phone customers are aware that their cell phone
providers collect and store historical location information. "), but my decision on this preliminary
injunction does not tum on whether the NSA has in fact collected that data as part of the bulk
telephony metadata program.
53
result, people make calls and send text messages now that they would not (really, could
not) have made or sent back when Smith was decided-for example, every phone call
today between two people trying to locate one another in a public place. See CTIA Quick
Facts, supra (2.3 trillion voice minutes used in 2012, up from 62.9 billion in 1997). This
rapid and monumental shift towards a cell phone-centric culture means that the metadata
from each person's phone "reflects a wealth of detail about her familial, political,
professional, religious, and sexual associations," Jones, 132 S. Ct. at 955 (Sotomayor, J.,
concurring), that could not have been gleaned from a data collection in 1979. See also
Dccl. of Prof. Edward W. Felten ("Felten Decl.") [Dkt. # 22-1], at
~~
38-58. Records that
once would have revealed a few scattered tiles of information about a person now reveal
an entire mosaic-a vibrant and constantly updating picture of the person's life. See
Maynard, 615 F.3d at 562-63.
58
Whereas some may assume that these cultural changes
will force people to "reconcile themselves" to an "inevitable" "diminution of privacy that
new technology entails," Jones, 132 S. Ct. at 962 (Alito, J., concurring), I think it is more
58 The
Government maintains that the metadata the NSA collects does not contain personal
identifying information associated with each phone number, and in order to get that information
the FBI must issue a national security letter ("NSL") to the phone company. Govt.'s Opp'n at
48-49; P.1. Hr' g Tr. at 44-45. Of course, NSLs do not require any judicial oversight, see 18
U.S.c. § 2709; 12 U.S.c. § 3414,15 U.S.C. § 1681u; 15 U.S.C. § 1681v; 50 U.S.C. § 3162,
meaning they are hardly a check on potential abuses of the metadata collection. There is also
nothing stopping the Government from skipping the NSL step altogether and using public
databases or any of its other vast resources to match phone numbers with subscribers. See, e.g.,
James Ball et aI., Covert surveillance: The reaction: 'They are tracking the calling patterns of
the entire country', GUARDIAN, June 7, 2013, at 5 ("[W]hen cross-checked against other public
records, the metadata can reveal someone's name, address, driver's licence, credit history, social
security number and more."); Felten DecI. ~ 19 & n.14; SuppI. DecI. of Prof. Edward W. Felten
[Dkt. # 28], at ~~ 3-4 ("[I]t would be trivial for the government to obtain a subscriber's name
once it has that subscriber's phone number .... It is extraordinarily easy to correlate a phone
number with its unique owner.").
54
likely that these trends have resulted in a greater expectation of privacy and a recognition
that society views that expectation as reasonable. 59
In sum, the Smith pen register and the ongoing NSA Bulk Telephony Metadata
Program have so many significant distinctions between them that I cannot possibly
navigate these uncharted Fourth Amendment waters using as my North Star a case that
predates the rise of cell phones. Plaintiffs have alleged that they engage in conduct that
exhibits a subjective expectation of privacy in the bulk, five-year historical record of their
telephony metadata, see Pis.' Mem. at 21; Suppl. Klayman Aff.
~~
5,10,13; Strange Aff.
~~ 11,19, and I have no reason to question the genuineness of those subjective beliefs.i"
The more difficult question, however, is whether their expectation of privacy is one that
59 Public opinion polls bear this out. See, e.g., Associated Press, 9/11 Anniversary: Poll finds
public doubts growing onfederal surveillance, privacy, Hous. CHRON., Sept. 11,2013, at A6
("Some 56 percent oppose the NSA's collection of telephone records for future investigations
even though they do not include actual conversations.").
If plaintiffs lacked such a subjective expectation of privacy in all of their cell phone metadata,
I would likely find that it is the result of '''condition[ing]' by influences alien to well-recognized
Fourth Amendment freedoms." Smith, 442 U.S. at 740 n.5. In 1979, the Court announced that
numbers dialed on a phone are not private, and since that time, the Government and courts have
gradually (but significantly) expanded the scope of what that holding allows. Now, even local
police departments are routinely requesting and obtaining massive cell phone "tower dumps,"
each of which can capture data associated with thousands of innocent Americans' phones. See
Ellen Nakashima, 'Tower dumps' give police masses ofcellphone data, WASH. POST, Dec. 9,
2013, at AOI. Targeted tower dumps may be appropriate under certain circumstances and with
appropriate oversight and limitations, see In re Search ofCellular Tel. Towers, --- F. Supp. 2d --,2013 WL 1932881, at *2 (S.D. Tex. May 8, 2013) (requiring warrant and return of all irrelevant
records to telecom provider for 77-tower dump of all data for five-minute period), and
fortunately, that question is not before me here. The point is, however, that the experiences of
many Americans-especially those who have grown up in the post-Smith, post-cell phone, postPATRIOT Act age-might well be compared to those of the "refugee from a totalitarian country,
unaware of this Nation's traditions, [who] erroneously assume[] that police were continuously
monitoring" telephony metadata. Smith, 442 U.S. at 740 n.5. Accordingly, their "subjective
expectations obviously could play no meaningful role in ascertaining ... the scope of Fourth
Amendment protection," and "a normative inquiry would be proper." Id.
60
55
society is prepared to recognize as objectively reasonable and justifiable. As I said at the
outset, the question before me is not whether Smith answers the question of whether
people can have a reasonable expectation of privacy in telephony metadata under all
circumstances. Rather, the question that I will ultimately have to answer when I reach
the merits of this case someday is whether people have a reasonable expectation of
privacy that is violated when the Government, without any basis whatsoever to suspect
them of any wrongdoing, collects and stores for five years their telephony metadata for
purposes of subjecting it to high-tech querying and analysis without any case-by-case
judicial approval. For the many reasons set forth above, it is significantly likely that on
that day, I will answer that question in plaintiffs' favor.
ii,
There Is a Significant Likelihood Plaintiffs Will
Succeed in Showing that the Searches Are
Unreasonable.
Having found that a search occurred in this case, I next must "examin[e] the
totality of the circumstances to determine whether [the] search is reasonable within the
meaning of the Fourth Amendment." Samson v. California, 547 U.S. 843, 848 (2006)
(internal quotation marks omitted). '" [A]s a general matter, warrantless searches are per
se unreasonable under the Fourth Amendment. '" Nat 'I Fed'n ofFed. Emps.-IAM v.
Vi/sack, 681 F.3d 483, 488-89 (D.C. Cir. 2012) (quoting Quon, 130 S. Ct. at 2630); see
also Chandler v. Miller, 520 U.S. 305, 313 (1997) ("To be reasonable under the Fourth
Amendment, a search ordinarily must be based on individualized suspicion of
wrongdoing.").
56
The Supreme Court has recognized only a '''few specifically established and welldelineated exceptions to that general rule.:" Nat 'I Fed'n ofFed. Emps.-IAM, 681 F.3d at
489 (quoting Quon, 130 S. Ct. at 2630), including one that applies when '''special needs,
beyond the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable,'" id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646,
653 (1995)). "Even where the government claims 'special needs,"? as it does in this case,
"a warrantless search is generally unreasonable unless based on 'some quantum of
individualized suspicion."? Id. (quoting Skinner v. Ry. Labor Execs. ' Ass 'n, 489 U.S.
602, 624 (1989)). Still, a suspicionless search may be reasonable "'where the privacy
interests implicated by the search are minimal, and where an important governmental
interest furthered by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion.'?' Id. (quoting Skinner, 489 U.S. at 624). As such, my task is to
"'balance the [plaintiffs'] privacy expectations against the government's interests to
determine whether it is impractical to require a warrant or some level of individualized
suspicion in the particular context.'?' Id. (quoting Nat 'I Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 665-66 (1989)). This is a '''context-specific inquiry'" that involves
'" examining closely the competing private and public interests advanced by the parties. '"
Id. (quoting Chandler, 520 U.S. at 314)). The factors I must consider include: (1) "the
nature of the privacy interest allegedly compromised" by the search, (2) "the character of
the intrusion imposed" by the government, and (3) "the nature and immediacy of the
government's concerns and the efficacy of the [search] in meeting them." Bd. ofEduc. v.
Earls, 536 U.S. 822, 830-34 (2002).
57
"Special needs" cases, not surprisingly, form something of a patchwork quilt. For
example, schools and government employers are permitted under certain circumstances
to test students and employees for drugs and alcohol, see Earls, 536 U.S. 822; Vernonia
Sch. Dist., 515 U.S. 646; Von Raab, 489 U.S. 656; Skinner, 489 U.S. 602, and officers
may search probationers and parolees to ensure compliance with the rules of supervision,
see Griffin v. Wisconsin, 483 U.S. 868 (1987).61 The doctrine has also been applied in
cases involving efforts to prevent acts of terrorism in crowded transportation centers.
See, e.g., Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006) (upholding searches of carry-on
bags and automobiles that passengers bring on ferries); Mac Wade v. Kelly, 460 F.3d 260
(2d Cir. 2006) (upholding searches of bags in New York City subway system). To my
knowledge, however, no court has ever recognized a special need sufficient to justify
continuous, daily searches of virtually every American citizen without any particularized
suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction
such a dragnet.
For reasons I have already discussed at length, I find that plaintiffs have a very
significant expectation of privacy in an aggregated collection of their telephony metadata
covering the last five years, and the NSA's Bulk Telephony Metadata Program
61 Suspicionless searches and seizures have also been allowed in other contexts not analyzed
under the "special needs" framework, including administrative inspections of "closely regulated"
businesses, see New York v. Burger, 482 U.S. 691 (1987), searches of fire-damaged buildings for
the purpose of determining the cause of the fire, see Michigan v. Tyler, 436 U.S. 499 (1978), and
highway checkpoints set up to catch intoxicated motorists and illegal entrants into the United
States, see Mich. Dep't a/State Police v. Sitz, 496 U.S. 444 (1990); United States v. MartinezFuerte, 428 U.S. 543 (1976).
58
significantly intrudes on that expectation.f Whether the program violates the Fourth
Amendment will therefore tum on "the nature and immediacy of the government's
concerns and the efficacy of the [search] in meeting them." Earls, 536 U.S. at 834.
The Government asserts that the Bulk Telephony Metadata Program serves the
"programmatic purpose" of "identifying unknown terrorist operatives and preventing
terrorist attacks." Govt.'s Opp'n at 51-an interest that everyone, including this Court,
agrees is "of the highest order of magnitude," In re Directives Pursuant to Section l05B
ofthe Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008);
see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no
governmental interest is more compelling than the security of the Nation." (internal
quotation marks omitted)).63 A closer examination of the record, however, reveals that
62 These privacy interests are not "mitigated ... by the statutorily mandated restrictions on
access to and dissemination of the metadata that are written into the FISC's orders." Govt.' s
Opp'n at 51-52. First, there are no minimization procedures applicable at the collection stage;
the Government acknowledges that FISC orders require the recipients to tum over all of their
metadata without limit. See Oct. 11,2013 Primary order at 3-4. Further, the most recent order
of the FISC states that any trained NSA personnel can access the metadata, with "[tjechnical
personnel" authorized to run queries even using non-RAS-approved selection terms for purposes
of "perform[ing] those processes needed to make [the metadata] usable for intelligence analysis."
Id. at 5. The "[r]esults of any intelligence analysis queries," meanwhile, "may be shared, prior
to minimization, for intelligence analysis purposes among [trained] NSA analysts." Id. at 12-13
(emphasis added); see also Shea Decl. ~~ 30, 32 (minimization procedures "guard against
inappropriate or unauthorized dissemination of information relating to U.S. persons," and
"results of authorized queries of the metadata may be shared, without minimization, among
trained NSA personnel for analysis purposes" (emphases added)). These procedures in no way
mitigate the privacy intrusion that occurs when the NSA collects, queries, and analyzes metadata.
And that's even assuming the Government complies with all of its procedures-an assumption
that is not supported by the NSA's spotty track record to date. See supra notes 23-25 and
accompanying text.
63 It bears noting that the Government's interest in stopping and prosecuting terrorism has not led
courts to abandon familiar doctrines that apply in criminal cases generally. See United States v.
Ressam, 679 F.3d 1069, 1106 (9th Cir. 2012) (Schroeder, 1., dissenting) (collecting cases in
59
the Government's interest is a bit more nuanced-it is not merely to investigate potential
terrorists, but rather, to do so faster than other investigative methods might allow.
Indeed, the affidavits in support of the Government's brief repeatedly emphasize this
interest in speed. For example, according to SID Director Shea, the primary advantage of
the bulk metadata collection is that "it enables the Government to quickly analyze past
connections and chains of communication," and "increases the NSA's ability to rapidly
detect persons affiliated with the identified foreign terrorist organizations." Shea Decl.
~
46 (emphases added); see also id. ~ 59 ("Any other means that might be used to attempt
to conduct similar analyses would require multiple, time-consuming steps that would
frustrate needed rapid analysis in emergent situations, and could fail to capture some data
available through bulk metadata analysis." (emphases added)). FBI Acting Assistant
Director of the Counterterrorism Division Robert J. Holley echoes Director Shea's
emphasis on speed: "It is imperative that the United States Government have the
capability to rapidly identify any terrorist threat inside the United States." Holley Dec!'
~
4 (emphasis added); see also id. ~~ 28-29 ("[T]he agility of querying the metadata
collected by NSA under this program allows for more immediate contact chaining, which
is significant in time-sensitive situations .... The delay inherent in issuing new national
security letters would necessarily mean losing valuable time . . . . [A]ggregating the NSA
which "courts have treated other issues in terrorism cases in ways that do not differ appreciably
from more broadly applicable doctrines"). In fact, the Supreme Court once expressed in dicta
that an otherwise impermissible roadblock "would almost certainly" be allowed "to thwart an
imminent terrorist attack." City ofIndianapolis v. Edmond, 531 U.S. 32,44 (2000) (emphases
added). The Supreme Court has never suggested that all Fourth Amendment protections must
defer to any Government action that purportedly serves national security or counterterrorism
interests.
60
telephony metadata from different telecommunications providers enhances and expedites
the ability to identify chains of communications across multiple providers." (emphases
added)).
Yet, turning to the efficacy prong, the Government does not cite a single instance
in which analysis of the NSA's bulk metadata collection actually stopped an imminent
attack, or otherwise aided the Government in achieving any objective that was timesensitive in nature. In fact, none of the three "recent episodes" cited by the Government
that supposedly "illustrate the role that telephony metadata analysis can play in
preventing and protecting against terrorist attack" involved any apparent urgency. See
Holley Decl. ,-r,-r 24-26. In the first example, the FBI learned of a terrorist plot still "in its
early stages" and investigated that plot before turning to the metadata "to ensure that all
potential connections were identified." Id. ,-r 24. Assistant Director Holley does not say
that the metadata revealed any new information-much less time-sensitive informationthat had not already come to light in the investigation up to that point. Id. In the second
example, it appears that the metadata analysis was used only after the terrorist was
arrested "to establish [his] foreign ties and put them in context with his U.S. based
planning efforts." Id. ,-r 25. And in the third, the metadata analysis "revealed a previously
unknown number for [a] co-conspirator ... and corroborated his connection to [the target
of the investigation] as well as to other U.S.-based extremists." Id. ,-r 26. Again, there is
no indication that these revelations were immediately useful or that they prevented an
impending attack. Assistant Director Holley even concedes that bulk metadata analysis
only "sometimes provides information earlier than the FBI's other investigative methods
61
and techniques." Id. ,-r 23 (emphasis addedj." Given the limited record before me at this
point in the litigation-most notably, the utter lack of evidence that a terrorist attack has
ever been prevented because searching the NSA database was faster than other
investigative tactics-I have serious doubts about the efficacy of the metadata collection
program as a means of conducting time-sensitive investigations in cases involving
imminent threats of terrorisrn" See Chandler, 520 U.S. at 318-19 ("Notably lacking in
respondents' presentation is any indication of a concrete danger demanding departure
from the Fourth Amendment's main rule."). Thus, plaintiffs have a substantial likelihood
of showing that their privacy interests outweigh the Government's interest in collecting
and analyzing bulk telephony metadata and therefore the NSA's bulk collection program
is indeed an unreasonable search under the Fourth Amendment."
64
Such candor is as refreshing as it is rare.
The Government could have requested permission to present additional, potentially classified
evidence in camera, but it chose not to do so. Although the Government has publicly asserted
that the NSA's surveillance programs have prevented fifty-four terrorist attacks, no proof of that
has been put before me. See also Justin Elliott & Theodoric Meyer, Claim on 'Attacks
Thwarted' by NSA Spreads Despite Lack ofEvidence, PROPUBLICA.ORG (Oct. 23, 2013),
http://www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-Iack-ofevidence ('''We've heard over and over again the assertion that 54 terrorist plots were thwarted'
by the [NSA's] programs .... 'That's plainly wrong .... These weren't all plots and they
weren't all thwarted. The American people are getting left with the inaccurate impression of the
effectiveness of the NSA programs.'" (quoting Sen. Patrick Leahy)); Ellen Nakashima, NSA's
need to keep database questioned, WASH. POST, Aug. 9,2013, at A01 ("[Senator Ron] Wyden
noted that [two suspects arrested after an investigation that involved use of the NSA's metadata
database] were arrested 'months or years after they were first identified' by mining the phone
logs.").
65
66 The Government points out that it could obtain plaintiffs' metadata through other means that
potentially raise fewer Fourth Amendment concerns. See Govt.'s Opp'n at 6 ("The records must
be ofa type obtainable by either a grand jury subpoena, or an order issued by a U.S. court
directing the production of records or tangible things." (citing 50 U.S.C. § 1861(c)(2)(D));
Holley Decl. ~ 14 ("In theory, the FBI could seek a new set of orders on a daily basis for the
records created within the preceding 24 hours."). Even if true, "[t]he fact that equivalent
62
I realize, of course, that such a holding might appear to conflict with other trial
courts, see, e.g., United States v. Moalin, Crim. No. 10-4246,2013 WL 6079518, at *5-8
(S.D. Cal. Nov. 18,2013) (holding that bulk telephony metadata collection does not
violate Fourth Amendment); United States v. Graham, 846 F. Supp. 2d 384,390-405 (D.
Md. 2012) (holding that defendants had no reasonable expectation of privacy in historical
cell-site location information); United States v. Gordon, Crim. No. 09-153-02, 2012 WL
8499876, at *1-2 (D.D.C. Feb. 6, 2012) (same), and with longstanding doctrine that
courts have applied in other contexts, see, e.g., Smith, 442 U.S. at 741-46 Miller, 425
U.S. at 443. Nevertheless, in reaching this decision, I find comfort in the statement in the
Supreme Court's recent majority opinion in Jones that "[a]t bottom, we must 'assur[e]
preservation of that degree of privacy against government that existed when the Fourth
Amendment was adopted.'" 132 S. Ct. at 950 (2012) (quoting Kyllo, 533 U.S. at 34).
Indeed, as the Supreme Court noted more than a decade before Smith, "[t]he basic
purpose ofth[e Fourth] Amendment, as recognized in countless decisions of this Court, is
to safeguard the privacy and security of individuals against arbitrary invasions by
governmental officials." Camara v. Mun. Court, 387 U.S. 523, 528 (1967) (emphasis
added); see also Quon, 130 S. Ct. at 2627 ("The Amendment guarantees the privacy,
dignity, and security of persons against certain arbitrary and invasive acts by officers of
the Government, without regard to whether the government actor is investigating crime
or performing another function." (internal quotation marks omitted)). The Fourth
information could sometimes be obtained by other means does not make lawful the use of means
that violate the Fourth Amendment." Kyllo, 533 U.S. at 35 n.2.
63
Amendment typically requires "a neutral and detached authority be interposed between
the police and the public," and it is offended by "general warrants" and laws that allow
searches to be conducted "indiscriminately and without regard to their connection with
[a] crime under investigation." Berger v. New York, 388 U.S. 41, 54, 59 (1967). I cannot
imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and hightech collection and retention of personal data on virtually every single citizen for
purposes of querying and analyzing it without prior judicial approval. Surely, such a
program infringes on "that degree of privacy" that the Founders enshrined in the Fourth
Amendment. Indeed, I have little doubt that the author of our Constitution, James
Madison, who cautioned us to beware "the abridgement of freedom of the people by
gradual and silent encroachments by those in power," would be aghast."
2.
Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief.
"It has long been established that the loss of constitutional freedoms, 'for even
minimal periods of time, unquestionably constitutes irreparable injury. '" Mills v. District
ofColumbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S.
347,373 (1976) (plurality opinion)). As in this case, the court in Mills was confronted
with an alleged Fourth Amendment violation: a "Neighborhood Safety Zones" traffic
checkpoint for vehicles entering a high-crime neighborhood in Washington, DC. Id. at
67 James
Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June
16, 1788), in THE HISTORY OF THE VIRGINIA FEDERAL CONVENTION OF 1788, WITH SOME
ACCOUNT OF EMINENT VIRGINIANS OF THAT ERA WHO WERE MEMBERS OF THE BODY (Vol. 1)
130 (Hugh Blair Grigsby et al. eds., 1890) ("Since the general civilization of mankind, I believe
there are more instances of the abridgement of freedom of the people by gradual and silent
encroachments by those in power than by violent and sudden usurpations.").
64
1306. After finding a strong likelihood of success on the merits, our Circuit Court had
little to say on the irreparable injury prong, instead relying on the statement at the
beginning of this paragraph that a constitutional violation, even of minimal duration,
constitutes irreparable injury. Plaintiffs in this case have also shown a strong likelihood
of success on the merits of a Fourth Amendment claim. As such, they too have
adequately demonstrated irreparable injury.
3.
The Public Interest and Potential Injury to Other Interested Parties Also
Weigh in Favor ofInjunctive Relief.
'" [1]t is always in the public interest to prevent the violation of a party's
constitutional rights.'" Am. Freedom De! Initiative v. Wash. Metro. Area Transit Auth.,
898 F. Supp. 2d 73, 84 (D.D.C. 2012) (quoting G & V Lounge, Inc. v. Mich. Liquor
Control Comm 'n, 23 FJd 1071, 1079 (6th Cir. 1994)); see also Hobby Lobby Stores, Inc.
v. Sebelius, 723 F.3d 1114, 1145 (lOth Cir. 2013) (same), cert. granted, --- S. Ct. ----,
2013 WL 5297798 (2013); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(same); Nat'l Fed'n ofFed. Emps. v. Carlucci, 680 F. Supp. 416 (D.D.C. 1988)
("[T]he public interest lies in enjoining unconstitutional searches."). That interest looms
large in this case, given the significant privacy interests at stake and the unprecedented
scope of the NSA's collection and querying efforts, which likely violate the Fourth
Amendment. Thus, the public interest weighs heavily in favor of granting an injunction.
The Government responds that the public's interest in combating terrorism is of
paramount importance, see Govt.'s Opp'n at 64-65-a proposition that 1 accept without
question. But the Government offers no real explanation as to how granting relief to
65
these plaintiffs would be detrimental to that interest. Instead, the Government says that it
will be burdensome to comply with any order that requires the NSA to remove plaintiffs
from its database. See id. at 65; Shea Decl.
~
65. Of course, the public has no interest in
saving the Government from the burdens of complying with the Constitution! Then, the
Government frets that such an order "could ultimately have a degrading effect on the
utility of the program if an injunction in this case precipitated successful requests for such
relief by other litigants." Govt.ts Opp'n at 65 (citing Shea Decl
~
65). For reasons
already explained, I am not convinced at this point in the litigation that the NSA's
database has ever truly served the purpose of rapidly identifying terrorists in timesensitive investigations, and so I am certainly not convinced that the removal of two
individuals from the database will "degrade" the program in any meaningful sense. 68 I
will leave it to other judges to decide how to handle any future litigation in their courts.
CONCLUSION
This case is yet the latest chapter in the Judiciary's continuing challenge to
balance the national security interests of the United States with the individual liberties of
our citizens. The Government, in its understandable zeal to protect our homeland, has
crafted a counterterrorism program with respect to telephone metadata that strikes the
balance based in large part on a thirty-four year old Supreme Court precedent, the
68 To the extent that removing plaintiffs from the database would create a risk of "eliminating, or
cutting off potential call chains," Shea Decl. ~ 65, the Government concedes that the odds of this
happening are miniscule. See Govt.'s Opp'n at 2 ("[O]nly a tiny fraction of the collected
metadata is ever reviewed ...."); Shea Decl. ~ 23 ("Only the tiny fraction of the telephony
metadata records that are responsive to queries authorized under the RAS standard are extracted,
reviewed, or disseminated ....").
66
relevance of which has been eclipsed by technological advances and a cell phone-centric
lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no
doubt, will wrestle to find the proper balance consistent with our constitutional system.
But in the meantime, for all the above reasons, I will grant Larry Klayman's and Charles
Strange's requests for an injunction'" and enter an order that (1) bars the Government
from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony
metadata associated with their personal Verizon accounts and (2) requires the
Government to destroy any such metadata in its possession that was collected through the
bulk collection program. 70
However, in light of the significant national security interests at stake in this case
and the novelty of the constitutional issues, I will stay my order pending appeal. 71 In
doing so, I hereby give the Government fair notice that should my ruling be upheld, this
order will go into effect forthwith. Accordingly, I fully expect that during the appellate
process, which will consume at least the next six months, the Government will take
whatever steps necessary to prepare itself to comply with this order when, and if, it is
For reasons stated at the outset, this relief is limited to Klayman I plaintiffs Larry Klayman and
Charles Strange. I will deny Mary Ann Strange's motion and the motion in Klayman II.
69
Although it is true that granting plaintiffs the relief they request will force the Government to
identify plaintiffs' phone numbers and metadata records, and then subject them to otherwise
unnecessary individual scrutiny, see Shea Decl. ~ 64, that is the only way to remedy the
constitutional violations that plaintiffs are substantially likely to prove on the merits.
70
71 See, e.g., Doe v. Gonzales, 386 F. Supp. 2d 66,83 (D. Conn. 2005) ("The court finds that it is
appropriate to grant a brief stay of a preliminary injunction in order to permit the Court of
Appeals an opportunity to consider an application for a stay pending an expedited appeal.");
Luevano v. Horner, No. 79-0271,1988 WL 147603, at *8 (D.D.C. June 27,1988) ("[T]he Court
will enter the injunctive relief that has been requested by plaintiffs but will, sua sponte, stay the
effect of that injunction pending the outcome of the appeal in [a related case]. In this way, the
interests of justice will best be served.").
67
upheld. Suffice it to say, requesting further time to comply with this order months from
now will not be well received and could result in collateral sanctions.
l
RICHARDJ.
United States District Judge
68